[Cite as Plank v. Bellefontaine, 2017-Ohio-8623.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               LOGAN COUNTY




CHRISTOPHER PLANK,
ADMINISTRATOR OF THE
ESTATE OF MONICA PLANK,

        PLAINTIFF-APPELLEE,                            CASE NO. 8-17-18

        v.

CITY OF BELLEFONTAINE, ET AL.,                         OPINION

        DEFENDANTS-APPELLANTS.




                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CV 16 02 0040

                       Judgment Reversed and Cause Remanded

                          Date of Decision: November 20, 2017




APPEARANCES:

        Keona R. Padgett for Appellants

        Jeff Ratliff for Appellee
Case No. 8-17-18


ZIMMERMAN, J.

        {¶1} Defendant-Appellant, the City of Bellefontaine and the City of

Bellefontaine Water Department, (hereafter referred to as “Appellant”)1 appeal the

June 28, 2017 Judgment Entry of the Logan County Common Pleas Court denying

its motion for summary judgment in a negligence lawsuit. For the reasons that

follow, we reverse the judgment of the trial court.

                                 Facts and Procedural History

        {¶2} In the early morning hours of February 16, 2014, Christopher Plank,

(“Christopher” or “Appellee”) Plaintiff-Appellee, and his wife, Monica Plank

(“Monica”), were with friends at the Route 68 Grill in Bellefontaine, Ohio. Around

1 a.m., Monica became upset and decided to leave the Route 68 Grill, by herself, to

return to the Comfort Inn in Bellefontaine, Ohio, where she and Christopher were

staying. When Christopher saw that Monica had left the Route 68 Grill, he paid

their tab and started out on foot to follow Monica. While walking north on South

Main Street in Bellefontaine, Monica chose to walk in the street because the

sidewalk was covered with snow. Christopher, who was also in the street, was

following behind Monica. While walking in the street, Monica was struck by a

vehicle and killed in the vicinity of 917 South Main Street in Bellefontaine. The



1
  For purposes of this appeal, the City of Bellefontaine Water Department, and the property that the Water
Department occupies, are both owned by the City of Bellefontaine. Consequently, we refer to Appellant in
the singular.

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Case No. 8-17-18


building located at 917 South Main Street was the City of Bellefontaine Water

Department, which was owned and operated by the City of Bellefontaine. The

sidewalk in front of the Water Department Building had not been cleared of snow

at the time Monica was struck and killed.

         {¶3} On February 16, 2016, Christopher filed a wrongful death action in the

Logan County Court of Common Pleas naming the City of Bellefontaine, the City

of Bellefontaine Water Department, and Danny L. Levan and Loretta A. Levan2 as

defendants. (Doc. No. 1). In his complaint, Christopher alleged that as a result of

the plowing of roads by city employees, there was a severe and unnatural

accumulation of snow and ice on the sidewalk in front of the Bellefontaine City

Water Department Building, and that unnatural accumulation of snow and ice on

that sidewalk forced Monica to walk in the street, and proximately caused her death.

(Id.).

         {¶4} Christopher’s lawsuit also cited Bellefontaine City Code Section

521.06, which provided that it was the duty of the owner or occupant of each and

every parcel of real estate in the City of Bellefontaine to the keep the sidewalk

abutting his or her premises free and clear of snow and ice and to remove therefrom

all snow and ice within a reasonable time. (Id.). Further, Christopher’s wrongful

death complaint alleged that the City of Bellefontaine and the City of Bellefontaine


2
 Danny L. Levan and Loretta A. Levan, owners of property located at 909 South Main Street in Bellefontaine,
Ohio were voluntarily dismissed without prejudice by Appellee on May 13, 2016. (Doc. No. 30).

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Case No. 8-17-18


Water Department violated the city code, and negligently allowed unsafe and

dangerous conditions to exist on the sidewalk after a reasonable time, which forced

Monica to walk in the street. (Id. at 5). The wrongful death complaint alleged that

Monica died as a direct and proximate result of Appellant’s negligence. (Id.).

      {¶5} On March 10, 2016, Appellant filed its answer denying negligence and

asserting multiple defenses to Appellee’s claim, including political subdivision

immunity. (Doc. No. 15).

      {¶6} On May 10, 2017, Appellant filed its Motion for Summary Judgment in

the trial court. (Doc. No. 78). In its motion, Appellant asserted that summary

judgment was appropriate as a matter of law because it is a political subdivision,

engaged in a governmental function, and was entitled to immunity under R.C.

Chapter 2744 as a matter of law. (Id. at 7). On June 2, 2017, Appellee filed a

response to Appellant’s motion, asserting that summary judgment was not

appropriate because material questions of fact exist and that Appellant was not

immune under R.C. 2744.02(B). (Doc. No. 116).

      {¶7} On June 28, 2017, the trial court issued its Judgment Entry on

Appellant’s motion for summary judgment. (Doc. No. 127). The trial court held:

      Plaintiff’s decedent, Monica Plank, was killed on South Main Street,
      Bellefontaine on February 15, 2014 in front of the premises owned by
      the City of Bellefontaine as part of its city water department (917
      South Main Street) and the Levans at 909 South Main Street. The
      deceased [sic] while walking north on Main Street was struck by an
      automobile and died from those injuries sustained in that impact.

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Case No. 8-17-18


         Plaintiff’s complaint alleges that but for the negligence of the city the
         Plaintiff would not have had to walk in the street. The city in its
         defenses and in its motions alleges numerous defenses. The Court
         finds, however, that under Plaintiff’s complaint the city may be liable
         under the proprietary function exception to government immunity
         contained in R.C. 2744.02(B)(2). By definition the establishment,
         maintenance and operation of a water supply system is a proprietary
         function, R.C. 2744.01(G)(2)(c). The Court finds under the theory of
         liability and that exception of governmental immunity there are many
         genuine issues of material fact. Among them are whether the snow
         on the Defendant’s sidewalk was a natural accumulation or a man-
         made accumulation, whether the Defendant’s negligence, if any, was
         the proximate cause of decedent’s death, and whether the deceased’s
         conduct (assumption of risk) was comparatively more negligent than
         the city’s. It is therefore ORDERED that the Defendant’ [sic] motion
         for summary judgment be, and hereby is denied.

(Id.).

         {¶8} From this Judgment Entry Appellant appeals pursuant to R.C.

2744.02(C),3 and presents the following sole assignment of error for our review:

                             ASSIGNMENT OF ERROR NO. I

         THE TRIAL COURT ERRED BY DENYING POLITICAL
         SUBDIVISION  IMMUNITY    TO    THE   CITY  OF
         BELLEFONTAINE AND THE CITY OF BELLEFONTAINE
         WATER DEPARTMENT BECAUSE THEY ARE ENTITLED
         TO A GENERAL GRANT OF IMMUNITY, NONE OF THE
         EXCEPTIONS UNDER R.C. 2744.02(B) APPLY TO BAR
         IMMUNITY, AND, EVEN IF AN EXCEPTION APPLIES,
         THREE DEFENSES ESTABLISH NON-LIABILITY.




3
  While a denial of a motion for summary judgment is generally not a final appealable order, R.C. 2744.02(C)
specifically allows that an order denying a political subdivision the benefit of an alleged immunity from
liability as provided in R.C. Chapter 2744 is a final order. R.C. 2744.02(C).

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Case No. 8-17-18


       {¶9} On appeal, Appellant presents three issues for this Court to review: (1)

whether the City of Bellefontaine and the City of Bellefontaine Water Department

are a political subdivision entitled to a grant of immunity; (2) whether any of the

exceptions under R.C. 2744.02(B), including the exception regarding negligent

performance of a proprietary function apply, removing immunity in a case regarding

the maintenance of a sidewalk; and (3) whether, even if one of the exceptions under

R.C. 2744.02 does apply, R.C. 2744.03 is applicable to establish Appellant’s non-

liability. For the reasons that follow, we sustain Appellant’s assignment of error and

reverse the judgment of the trial court.

                                 Standard of Review

       {¶10} An appellate court reviews a trial court’s decision on a motion for

summary judgment de novo. Hancock Fed. Credit Union v. Coppus, 2015-Ohio-

5312, 54 N.E.3d 806, ¶ 15 (3rd Dist.). Trial courts may grant a motion for summary

judgment 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) 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.” Hamilton v. Hector, 117 Ohio App.3d 816, 819, 691 N.E.2d 745, 747

(3rd Dist.1997).     Additionally, “‘upon appeal from summary judgment, the

reviewing court should look at the record in the light most favorable to the party


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Case No. 8-17-18


opposing the motion.’” Id. quoting Campbell v. Hosp. Motor Inns, Inc., 24 Ohio

St.3d 54, 58, 493 N.E.2d 239 (1986).

                                        Analysis

       {¶11} The Political Subdivision Tort Liability Act, codified in R.C. Chapter

2744, governs political subdivision liability and immunity. See generally, Vacha v.

N. Ridgeville, 136 Ohio St.3d 199, 2013-Ohio-3020, 992 N.E.2d 1126, ¶ 12. In

Ohio, courts apply a three-tiered analysis to determine whether a political

subdivision is entitled to immunity under R.C. Chapter 2744. State ex rel. Rohrs.

v. Germann, 3rd Dist. Henry No. 7-12-21, 2013-Ohio-2497, ¶ 28. “First, the court

must determine whether the entity claiming immunity is a political subdivision and

whether the alleged harm occurred in connection with either a governmental or a

proprietary function.” R.C. 2744.02(A)(1); Brady v. Bucyrus Police Dept., 194

Ohio App.3d 574, 2011-Ohio-2460, 957 N.E.2d 339, ¶ 44 (3rd Dist.). “In the

second tier of analysis, R.C. 2744.02(B) provides five exceptions that may lift the

broad immunity provided for in R.C. 2744.02(A).” Jones v. Delaware City School

Dist. Bd. of Edn., 2013-Ohio-3907, 995 N.E.2d 1252, ¶ 19 (5th Dist.). And

“‘[f]inally, under the third tier of analysis, immunity can be reinstated if the political

subdivision can successfully argue that any of the defenses contained in R.C.

2744.03 applies.’” McNamara v. Marion Popcorn Festival, 2012-Ohio-5578, 983




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Case No. 8-17-18


N.E.2d 818, ¶ 21 (3rd Dist.) quoting Hortman v. City of Miamisburg, 110 Ohio St.3d

194, 2006-Ohio-4251, 852 N.E.2d 716, ¶ 12.

                       Tier I - Political Subdivision Analysis

       {¶12} Initially, we must determine whether the City of Bellefontaine/City of

Bellefontaine Water Department is a political subdivision and whether Monica’s

alleged harm occurred in connection with either a governmental or proprietary

function.

       {¶13} In determining whether an entity is a political subdivision, we must

look to R.C. 2744.01(F), which defines a political subdivision, in its pertinent part,

as follows: “* * * a municipal corporation, township, county, school district, or other

body corporate and politic responsible for governmental activities in a geographic

area smaller than that of the state. * * *.” R.C. 2744.01(F). In this case it is

undisputed that the City of Bellefontaine is a political subdivision pursuant to R.C.

2744.01(F). See Brady at ¶ 45 (finding that the City of Bucyrus was a political

subdivision after satisfying R.C. 2744.01(F)). Further, the parties do not dispute

that the City of Bellefontaine is the owner of the land upon which the City of

Bellefontaine Water Department Building sits. Thus, we find that the City of

Bellefontaine and the City of Bellefontaine Water Department to be a political

subdivision.




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Case No. 8-17-18


       {¶14} Next, under this first tier analysis, we must determine if the alleged

harm (to Monica) occurred in connection with either a governmental or a proprietary

function. Relevant to this appeal, R.C. 2744.01(C)(2)(e) defines a “governmental

function” as:

       A “governmental function” includes, but is not limited to, the
       following: [t]he regulation of the use of, and the maintenance and
       repair of, roads, highways, streets, avenues, alleys, sidewalks,
       bridges, aqueducts, viaduct, and public grounds.

(Emphasis added). R.C. 2744.01(C)(2)(e). And, with respect to a proprietary

function, R.C. 2744.01(G)(2)(c) defines a “proprietary function” as:

       A “proprietary function” includes, but is not limited to, the following:
       [t]he establishment, maintenance, and operation of a utility,
       including, but not limited to, a light, gas, power, or heat plant, a
       railroad, a busline or other transit company, an airport, and a
       municipal corporation water supply system.

(Emphasis added). R.C. 2744.01(G)(2)(c).

       {¶15} Appellant asserts that because Appellee contends that the plowing of

snow on a street and the maintenance (or lack thereof) of its sidewalk was the

proximate cause of Monica’s death, the harm Monica incurred was in connection to

a governmental function. We agree. The First District Court of Appeals reasoned

in Evans v. Cincinnati, that “the statute in question [R.C. 2744.01] explicitly

provides that to be proprietary, an activity must not be listed as governmental. * * *

Sidewalk maintenance and regulation is specifically listed as governmental.” Evans

v. Cincinnati, 1st Dist. Hamilton No. C-120726, 2013-Ohio-2063, ¶ 12. See also,

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Case No. 8-17-18


Wilson v. Cleveland, 2012-Ohio-4289, 979 N.E.2d 356, ¶ 15 (8th Dist.) (holding

that the maintenance of a sidewalk is a governmental function, and as a

governmental function, the exception under R.C. 2744.02(B)(2) does not apply). In

the case before us, Appellee alleged in his complaint that the City of Bellefontaine

breached its duty to keep the sidewalk clear of a dangerous condition that it created,

(i.e. excess snow on the sidewalk from plowing) which was the proximate cause of

Monica’s death. As such, and similar to the holdings of our sister districts in Evans

and Wilson, we find that the maintenance of streets and sidewalks by a city is a

governmental, not a proprietary function.

       {¶16} Nevertheless, Appellee argues that the trial court properly held that the

“city may be liable under the proprietary function exception to governmental

immunity contained in R.C. 2744.02(B)(2),” because the City owned and operated

the Water Department Building that abutted the sidewalk in question. However, we

find such analysis misplaced because the harm suffered (by Monica) must have a

greater nexus to a proprietary function for this exception to apply. In support of this

we are directed to Calet v. East Ohio Gas Company, wherein the 9th District Court

of Appeals affirmed the trial court’s denial of a motion for summary judgment filed

on behalf of the City of Akron, finding that there were genuine issues of material

fact that rendered summary judgment inappropriate. Calet v. E. Ohio Gas Co.,

2017-Ohio-348, 83 N.E.3d 218, ¶¶ 14-16 (9th Dist). The Plaintiff in Calet suffered


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Case No. 8-17-18


injuries resulting from falling into a hole in a city sidewalk. Id. at ¶ 15. “A

supervisor for the City’s Water Distribution Division identified the sidewalk hole

as a ‘water curb box’ and explained that [the hole] contained a valve used by the

city to control water service to that location.” Id. Based on those facts, the 9th

District Court of Appeals reasoned that there was a logical nexus between the City

of Akron and its proprietary function of maintaining and operating a municipal

corporation water supply system, pursuant to R.C. 2744.01(G)(2)(c), and the

resulting harm to the Plaintiff. Id. at ¶ 16.

       {¶17} In the case before us, there is no evidence to support that the City of

Bellefontaine’s proprietary function of maintaining and operating its water

department (pursuant to R.C. 2744.01(G)(2)(c)) was the proximate cause of

Monica’s harm. Rather, as pled in Appellee’s complaint, the “severe accumulation

of snow and ice [on the sidewalk] was such that it created an obstruction upon the

sidewalks * * * and forced Monica Plank to walk in the street * * *” and caused

such harm. (Doc. No. 1 at ¶ 16). Moreover, the record does not support that the

City of Bellefontaine’s operation or management of its Water Department had any

nexus to Monica’s harm other than the fact that the Water Department Building was

located on the land that contained the sidewalk that abutted the street where she was

killed. Thus, we are unpersuaded that the plowing of the street and/or maintenance




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of the sidewalk located in front of the City of Bellefontaine Water Department

Building constituted a proprietary function in this case.

                           Tier II - Exceptions to General Immunity

         {¶18} Next, we must determine whether any of the five exceptions under

R.C. 2744.02(B) lift the general grant of immunity afforded to a political

subdivision.       Appellant argues that none of the exceptions contained in R.C.

2744.02(B) apply to the case before us, while Appellee argues that R.C.

2744.02(B)(2) and R.C. 2744.02(B)(5)4 remove the general presumption of

statutory immunity set forth in R.C. 2744.01(A)(1). As an initial matter, our

analysis under this tier will be limited to R.C. 2744.02(B)(2) and (B)(5), as neither

party asserts that the exceptions found under R.C. 2744.02(B)(1); (B)(3); or (B)(4)

apply.

         {¶19} Analyzing each exception at issue, R.C. 2744.02(B)(2) provides as

follows:

         Subject to sections 2744.03 and 2744.05 of the Revised Code, 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 subdivision or of any of its employees in
         connection with a governmental or proprietary function, as follows:

         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


4
  In its Judgment Entry, the trial court specifically found that the City may be liable under the proprietary
function exception to government immunity contained in R.C. 2744.02(B)(2). (Doc. No. 127 at 2).

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Case No. 8-17-18


       by their employees with respect to proprietary functions of the
       political subdivisions.

(Emphasis added). R.C. 2744.02(B)(2).

       {¶20} To determine whether the R.C. 2744.02(B)(2) exception applies, we

must look at the particular function at issue. As this Court has previously held, “the

central issue resolves to whether the action for which the plaintiff seeks to hold the

political subdivision liable is a part of a governmental function or part of a

proprietary function.” Main v. Lima, 3rd Dist. Allen No. 1-14-42, 2015-Ohio-2572,

¶ 17 citing Scott v. Columbus Dept. of Pub. Utils., 192 Ohio App.3d 465, 2011-

Ohio-677, 949 N.E.2d 552, ¶ 11 (10th Dist.) citing Burns v. Upper Arlington, 10th

Dist. No. 06AP-680, 2007-Ohio-797, 2007 WL 589111, ¶ 10, 12. In this case, even

though the trial court specifically found that a material issue of fact existed

regarding the City’s performance of a proprietary function, (i.e. the maintenance

and operation of a Water Department) the record does not establish a nexus between

Monica’s harm (being forced to walk on the road due to the plowing of snow and

ice on the sidewalk) and any service offered by the Water Department. The function

for which the Appellee seeks to hold the political subdivision liable (maintenance

of sidewalks and streets) is decidedly a part of its governmental functions through

its maintenance of its streets and sidewalks.        As such, we find that R.C.

2744.02(B)(2) does not apply herein to remove the general presumption of statutory

immunity set forth in R.C. 2744.01(A)(1).

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       {¶21} Further, while not analyzed by the trial court, the Appellee alleges that

the R.C. 2744.02(B)(5) exception applies and removes the general presumption of

statutory immunity contained in R.C. 2744.01(A)(1). R.C. 2744.02(B)(5) states:

       Subject to sections 2744.03 and 2744.05 of the Revised Code, 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 subdivision or of any of its employees in
       connection with a governmental or proprietary function, as follows:

       In addition to the circumstances described in divisions (B)(1) to (4) of
       this section, a political subdivision is liable for injury, death, or loss
       to person or property when civil liability is expressly imposed upon
       the political subdivision by a section of the Revised Code, including,
       but not limited to, sections 2743.02 and 5591.37 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.

R.C. 2744.02(B)(5). Appellant disagrees and asserts that no provision of the

Revised Code exists to impose liability on the City pursuant to R.C. 2744.02(B)(5).

Nevertheless, in our de novo review of the record, we find Appellee’s reliance on

Bellefontaine City Codes 521.06 and 905.09 misplaced. Appellee argues that the

Revised Code created a statutory mechanism for the City Code to impose liability.

Specifically, R.C. 723.011 states:

       The legislative authority of a municipal corporation, in addition to the
       powers conferred by sections 729.01 to 729.10, inclusive, of the
       Revised Code, may require, by ordinance, by the imposition of

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Case No. 8-17-18


      suitable penalties or otherwise, 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.

R.C. 723.011.

      {¶22} We agree (with Appellee) that the City used R.C. 723.011 to enact two

city ordinances regarding the maintenance and repair of sidewalks, including the

removal of snow and ice. However, we disagree with Appellee’s reliance on

Bellefontaine City Code 521.06, which provides:

      (a) No owner or occupant of abutting lands shall fail to keep the
      sidewalks, curbs or gutters in repair and free of any nuisance.

      (b) It shall be the duty of the owner or occupant of each and every
      parcel of real estate in the City abutting upon any sidewalk to keep
      such sidewalk abutting his or her premises free and clear of snow and
      ice and to remove therefrom all snow and ice accumulated thereon
      within a reasonable time. “Reasonable time” means removal of the
      snow and ice within twenty-four hours after the most recent
      accumulation of ice or snow or within twenty-four hours after
      adequate notice, whether oral or written, has been served upon the
      owner or occupant or posted in writing at the main entrance of the
      premises.

      (c) Whoever violates this section is guilty of a minor misdemeanor.

(Emphasis added). Bellefontaine City Code 521.06. The immunity exception set

forth in R.C. 2744.02(B)(5) states: “[c]ivil liability shall not be construed to exist

* * * merely because * * * that section provides for a criminal penalty.” Thus,

Appellee’s attempt to create an exception based upon a city ordinance that imposes

a criminal penalty is contrary to the plain reading of R.C. 2744.02(B)(5).


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Case No. 8-17-18


Accordingly, we find Appellee’s argument regarding Bellefontaine City Code

521.06 is without merit.

       {¶23} As to the second city ordinance cited by Appellee, Bellefontaine City

Code 905.09, states as follows:

       (a) Every owner, occupant, lessee, person or agent having charge,
       control or ownership or any tenement, building, lot or land fronting
       on any avenue, street, alley, road or other public highway of the City
       is charged with the construction, maintenance and repair of the
       necessary sidewalks, or parts thereof located upon such lot or land,
       within the limits of the City, and such owner, occupant, person or
       agent shall be liable in money damages to any person, who, while in
       lawful use of such sidewalks, sustains an injury to person or damages
       to property, by reason of the failure of such owner, lessee, occupant,
       person or agent in charge, to maintain the sidewalk in good repair and
       free from any defect.

       (b) If by reason of the failure of such owner, occupant, lessee, person
       or agent in charge, as referred to in subsection (a) above, to maintain
       the sidewalk in good repair free of any defect, a claim is made or a
       money judgment obtained against the City, by any person sustaining
       injury for failure to repair to maintain a sidewalk free of any defect,
       the owner, occupant, lessee, person or agent in charge, shall be liable
       to and reimburse the City for all money paid by the City on any claim
       made or judgment obtained against the City, by any person injured by
       reason thereof.

(Emphasis added). Bellefontaine City Code 905.09. While Bellefontaine City Code

905.09 does impose civil liability for the failure to maintain a sidewalk, it also

provides that such liability attaches only when an injury occurs while a person is in

lawful use of said sidewalk. In the case before us, the record reveals that Monica

was not using the sidewalk when she was injured – rather, Monica was struck by a


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vehicle while walking in the road. (See Doc. No. 1 at 4). As such, we find

Appellee’s reliance on R.C. 2744.02(B)(5) unpersuasive, and that no exception

exists under the facts presented to remove the City’s general grant of immunity

under 2744.02(B)(5).

             Tier III – Defenses to Exceptions Found in R.C. 2744.03

       {¶24} Under the third tier of analysis, a political subdivision can reinstate

immunity by successfully arguing that any of the defenses contained in R.C.

2744.03 applies. However, such analysis is not required in this case because, as we

have held above, the City of Bellefontaine is a political subdivision and is entitled

to a grant of immunity and none of the exceptions to City’s grant of immunity apply.

As such, analysis of the third tier is unnecessary. Thus, we find that the trial court

erred as a matter of law by denying Appellant’s motion for summary judgment.

       {¶25} Accordingly, we sustain the Appellant’s sole assignment of error.

Having found error prejudicial to the Appellant herein in the particulars assigned

and argued, we reverse the judgment of the trial court, and remand the cause for

proceedings consistent with this opinion.

                                                            Judgment Reversed and
                                                                 Cause Remanded

WILLAMOWSKI and SHAW, J.J., concur.

/jlr



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