[Cite as Burgess v. Johnson, 2011-Ohio-5241.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




SONJA M. BURGESS                                :      JUDGES:
                                                :      Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                     :      Hon. Sheila G. Farmer, J.
                                                :      Hon. Patricia A. Delaney, J.
-vs-                                            :
                                                :      Case No. 11CAE050042
MARK A. JOHNSON, ET AL.                         :
                                                :
        Defendants-Appellees                    :      OPINION




CHARACTER OF PROCEEDING:                               Appeal from the Court of Common
                                                       Pleas, Case No. 10-CVC-11-1671



JUDGMENT:                                              Affirmed




DATE OF JUDGMENT ENTRY:                                October 10, 2011




APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

GEORGE R. ORYSHKEWYCH                               MARSHALL W. GUERIN
5566 Pearl Road                                     Law Offices of Craig S. Cobb - Columbus
Parma, OH 44129                                     2545 Farmers Drive, Suite 370
                                                    Columbus, OH 43235
Delaware County, Case No. 11CAE050042                                                   2

Farmer, J.

       {¶1}    On June 3, 2009, appellant, Sonja M. Burgess, was traversing the public

sidewalk of South Franklin Street in Delaware, Ohio when she tripped over an uneven

portion of the sidewalk and fell. Appellant did not see the unevenness prior to her fall

because the gap between the two sections of concrete was overgrown with grass which

obscured the difference in the grade between the two sections. Appellant sustained

injuries as a result of the fall.

       {¶2}    On November 19, 2010, appellant filed a complaint against appellee, Mark

A. Johnson, the owner of the real property located at 228 South Franklin Street.

Appellant alleged negligence in maintaining the sidewalk, and sought damages for her

personal injuries.

       {¶3}    On January 31, 2011, appellee filed a motion for summary judgment. By

judgment entry filed April 26, 2011, the trial court granted the motion, finding appellant

did not establish any of the exceptions to the general rule that the duty to keep public

sidewalks in repair and free from nuisance rests upon a municipality and not the

abutting property owner.

       {¶4}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

       {¶5}    "THE TRIAL JUDGE ERRED, AS A MATTER OF LAW, BY GRANTING

SUMMARY JUDGMENT AGAINST PLAINTIFF-APPELLANT."

       {¶6}    At the outset, we note this case comes to us on the accelerated calendar

governed by App.R. 11.1, which states the following in pertinent part:
Delaware County, Case No. 11CAE050042                                                  3


      {¶7}   "(E) Determination and judgment on appeal

      {¶8}   "The appeal will be determined as provided by App. R. 11.1. It shall be

sufficient compliance with App. R. 12(A) for the statement of the reason for the court's

decision as to each error to be in brief and conclusionary form.

      {¶9}   "The decision may be by judgment entry in which case it will not be

published in any form."

                                            I

      {¶10} Appellant claims the trial court erred in granting summary judgment to

appellee. We disagree.

      {¶11} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:

      {¶12} "Civ.R. 56(C) provides that before summary judgment may be granted, it

must be determined that (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

viewing such evidence most strongly in favor of the nonmoving party, that conclusion is

adverse to the party against whom the motion for summary judgment is made. State

ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,

364 N.E.2d 267, 274."

      {¶13} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same
Delaware County, Case No. 11CAE050042                                                      4

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30

Ohio St.3d 35.

       {¶14} Generally, an abutting landowner has no duty of care to pedestrians for

the condition of a public sidewalk. Eichorn v. Lustig's, Inc. (1954), 161 Ohio St. 11.

Therefore, under the common law, "[a]n owner of property abutting on a public street is

not liable for injuries to pedestrians resulting from defects in the abutting portion of such

street unless such defects are created or negligently maintained or permitted to exist by

such owner for his own private use or benefit." Id., at syllabus.

       {¶15} However, there are three exceptions to this general rule:

       {¶16} "1. An owner of property abutting a public sidewalk is not liable to a

pedestrian for injuries proximately caused by a defective or dangerous condition therein

unless:

       {¶17} "(a) a statute or ordinance imposes on such owner a specific duty to keep

the sidewalk adjoining his property in good repair;

       {¶18} "(b) by affirmative acts such owner creates or negligently maintains the

defective or dangerous condition; or,

       {¶19} "(c) such owner negligently permits the defective or dangerous condition

to exist for some private use or benefit." Crowe v. Hoffman (1983), 13 Ohio App.3d

254, paragraph one of the syllabus.

       {¶20} Initially, we must address appellant’s contention Eichorn was overruled by

amended R.C. 2744.01(H). For the following reasons, we find appellant's assertion

lacks merit. First, R.C. Chapter 2744 governs the liability of governmental entities and
Delaware County, Case No. 11CAE050042                                                    5


does not address or apply to the liability of private citizens. Also, the legislative notes

make no mention of Eichorn.

       {¶21} We now turn to the Eichorn exceptions.

       {¶22} Appellant argues Delaware Codified Ordinance 909.02 imposes a specific

duty on appellee as an abutting property owner. Said ordinance states the following in

pertinent part:

       {¶23} "(a) Existing Sidewalk and Curb. Existing sidewalks and curbing within

publicly dedicated right of way for public streets and alleys are the responsibility of the

abutting property owner for all required maintenance, repair and replacement activities,

and all associated costs thereof. Maintenance activities shall include, but not be limited

to sweeping and the removal of leaves, snow, and ice as may be required to maintain a

safe access for pedestrian movement."

       {¶24} Appellee counters such an ordinance, in and of itself, does not establish a

duty on an abutting landowner to a pedestrian, citing Dennison v. Buckeye Parking

Corp. (1953), 94 Ohio App. 379, 380-381, in support of his position ("the failure of the

abutting owner to maintain a sidewalk in good repair in compliance with an ordinance,

without more, does not give rise to a right of action on the part of a pedestrian who is

injured by reason of such defect').

       {¶25} Appellee also cites the Supreme Court of Ohio's decision in Lopatkovich v.

Tiffin (1986), 28 Ohio St. 3d 204.        Therein, the court addressed whether Tiffin

Ordinance No. 521.06 imposed a duty upon abutting landowners to a pedestrian. The

Tiffin ordinance stated in pertinent part, "[n]o owner or occupant of abutting lands shall
Delaware County, Case No. 11CAE050042                                                    6


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

nuisance." The Lopatkovich court at 207 held the following:

      {¶26} "In our view, the rationale behind sidewalk snow removal statutes like the

one sub judice is that it would be impossible for a city to clear snow and ice from all its

sidewalks; and the duty imposed by such statutes is most likely a duty to assist the city

in its responsibility to remove snow and ice from public sidewalks. This, however, does

not raise a duty on owners and occupiers to the public at large, and such statutes

should not, as a matter of public policy, be used to impose potential liability on owners

and occupiers who have abutting public sidewalks."

      {¶27} We find the statute at issue herein and the Tiffin ordinance to be closely

analogous; therefore, we conclude Lopatkovich controls the instant action. Following

the rationale set forth in Lopatkovich, we find Delaware Codified Ordinance 909.02 does

not impose a duty of care on an abutting landowner to a pedestrian.

      {¶28} As stated supra, the second exception is when a property owner by

affirmative act(s) creates or negligently maintains the defective or dangerous condition

causing the injury. "Such evidence must necessarily show that the use of the sidewalk

which brought about its disrepair was expressly or impliedly authorized by such owner."

Eichorn, supra, at 14. "Affirmative acts" have been described as the "construction of an

obstruction, or that the defect was created by the affirmative negligence of the

defendant, such as constructing a manhole in the sidewalk and leaving it uncovered."

Dennison, supra, at 380.

      {¶29} In this case, appellant agrees the uneven sidewalk might not be

attributable to appellee's affirmative acts or negligent maintenance. However, appellant
Delaware County, Case No. 11CAE050042                                                    7


contends appellee's failure to remove or trim grass and weeds which grew in the cracks

of the sidewalk and obscured the unevenness is negligent maintenance sufficient to

establish the second exception of the Eichorn rule. We disagree.

      {¶30} In its April 26, 2011 judgment entry, the trial court concluded the following:

      {¶31} "However, the Eichorn rule requires something more than mere neglect in

allowing grass to grow in a sidewalk. The homeowner must actually do something to

the sidewalk in order to be liable. That has not been shown in this case. Allowing grass

to grow and hide a defect is not negligent maintenance of a sidewalk, but failure to trim

grass or weeds."

      {¶32} We concur with the trial court's determination. In this case, the natural

occurrence of grass and weeds sprouting in the sidewalk crack is not tantamount to

"negligently permitting" a defect as annunciated in Eichorn. The natural accumulation of

grass and weeds, as well as the crack being less than two inches, do not equate to

attendant circumstances creating a substantial and dangerous condition.

      {¶33} As for the third exception, there is no evidence to suggest that appellee

permitted the complained of condition to exist for some private use or benefit.

      {¶34} Upon review, we find the trial court did not err in granting summary

judgment to appellee.

      {¶35} The sole assignment of error is denied.
Delaware County, Case No. 11CAE050042                                          8


      {¶36} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Farmer, J.

Delaney, J. concurs.

Hoffman, P.J. dissents.




                                        _s/ Sheila G. Farmer__________________




                                        _s/ Patricia A. Delaney________________




                                        ___________________________________

                                                       JUDGES

SGF/sg 913
Delaware County, Case No. 11CAE050042                                                     9

Hoffman, P.J., dissenting

      {¶37} I respectfully dissent from the majority opinion.

      {¶38} I find the second exception to the Eichorn rule is applicable herein. As

stated, supra, the second exception is when a property owner by affirmative act(s)

creates or negligently maintains the defective or dangerous condition causing the injury.

“Affirmative acts” have been described as the construction of an obstruction, or the

creation of a dangerous condition by the affirmative negligence of the landowner, such

as constructing a manhole in the sidewalk and leaving it uncovered. Dennison v.

Buckeye Parking Corp., supra.

      {¶39} In the case at bar, Appellant agrees the uneven sidewalk might not be

attributable to Appellee’s affirmative acts or negligent maintenance. However, Appellant

contends Appellee’s failure to remove or trim grass and weeds which grew in the cracks

of the sidewalk and obscured the unevenness constitutes negligent maintenance

sufficient to establish the second exception of the Eichorn rule. I agree. I refer once

again to the language of Eichorn. Therein, the Ohio Supreme Court stated:

      {¶40} “Owners of property abutting on a public street are not liable for injuries to

pedestrians resulting from defects in such streets unless such defects are created or

negligently permitted to exist by such owners for their own private use or benefit, such

as an open trap door in a sidewalk. (Citation omitted).” Id. at 13-14 (Emphasis added).

      {¶41} In its April 26, 2011 Judgment Entry, the trial court commented:

      {¶42} “[Appellee] concedes that he was aware of the uneven portions of his

sidewalk. * * * Knowledge of this defect, coupled with the failure to remove grass
Delaware County, Case No. 11CAE050042                                                  10


obscuring this defect, could be construed as negligent maintenance of a dangerous

condition.” Id. at 7, unpaginated.

       {¶43} Nonetheless, the trial court concluded “the Eichorn rule requires

something more than mere neglect in allowing grass to grow in a sidewalk. The

homeowner must actually do something to the sidewalk in order to be liable. That has

not been shown in this case. Allowing grass to grow and hide a defect is not negligent

maintenance of a sidewalk, but failure to trim grass or weeds.” Id.

       {¶44} I disagree with the trial court’s conclusion Appellee’s failure to trim grass

and weeds did not amount to “negligent maintenance” of the hazard. The Eichorn Court

used the term “negligently permit” which I find to be comparable to the term “negligently

maintain.” Appellee negligently permitted the weeds and grass to grow in the gap of the

sidewalk, which resulted in the obstruction of the unevenness.         Although the gap

Appellant tripped over is under 2 inches, I find the grass and weeds are arguably

attendant circumstances which could defeat the 2 inch rule. The pictures attached to

Appellant’s affidavit do not show the gap hidden by weeds and grass. However, in her

affidavit, Appellant did not aver the pictures accurately depict the growth of the grass

and weeds in the sidewalk at the time of her fall. Accordingly, I find a disputed issue of

material fact still exists.

       {¶45} I would sustain Appellant’s sole assignment of error and reverse and

remand the matter to the trial court.



                                     ______________________________________
                                                HON. WILLIAM B. HOFFMAN
Delaware County, Case No. 11CAE050042                                            11


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



SONJA M. BURGESS                          :
                                          :
       Plaintiff-Appellant                :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
MARK A. JOHNSON, ET AL.                   :
                                          :
       Defendants-Appellees               :        CASE NO. 11CAE050042




       For the reasons stated in our accompanying Opinion, the judgment of the Court

of Common Pleas of Delaware County, Ohio is affirmed. Costs to appellant.




                                          _s/ Sheila G. Farmer__________________




                                          _s/ Patricia A. Delaney________________




                                          ___________________________________

                                                          JUDGES
