COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59044 : NANCY KELLY, ET AL. : : : JOURNAL ENTRY Plaintiff-Appellants : : and -vs- : : OPINION CLEVELAND ELECTRIC ILLUMINATING : COMPANY : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 138,457 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellants: For Defendant-Appellee: JOSEPH E. RUTIGLIANO, ESQ. CRAIG S. MILLER, ESQ. RITA D. CIOFANI, ESQ. Director of Law Rutiglano & Associates Co., L.P.A. JOSEPH J. JERSE, ESQ. 1370 West Sixth Street, Suite 202 Assistant Law Director Cleveland, Ohio 44113 Room 106 - City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 - 1 - HARPER, J.: I. Appellants, Nancy Kelly, et al., appeal from the judgment of the Cuyahoga County Court of Common Pleas which granted summary judgment against them in their negligence claim against the City of Cleveland. For the reasons that follow, we reverse. II. On August 31, 1987, Nancy Kelly, her son Ryan, and her husband Robert were crossing Superior Avenue from the northeast to the southeast corners of the intersection of West Ninth Street and Superior Avenue. There is a traffic median that runs down the middle of Superior Avenue between West Sixth and West Ninth Streets. As the Kellys approached the median, the "Walk/Don't Walk" sign changed to "Don't Walk". Mrs. Kelly testified that cars were turning right onto eastbound Superior Avenue from West Ninth Street. Cars going west on Superior Avenue were also turning right onto northbound West Ninth Street. Mrs. Kelly testified that because of the nature of the traffic, they could not continue to go across or go back to the corner. She testified that the safest alternative was to walk on the median to avoid being struck by cars. Mrs. Kelly testified that while walking on the median, she was talking to her husband and watching the traffic. She was holding Ryan in her left arm and was walking behind her husband. - 2 - Approximately midway between West Sixth and West Ninth Street, Mrs. Kelly fell into a hole, about two feet square, while carrying her son. Neither Mrs. Kelly nor her husband saw the hole. Mrs. Kelly injured her leg and her arm. Ryan's head snapped and hit the concrete as his mother fell. Ryan sustained a lump on his head and an abrasion under his eye. The Kellys sued Cleveland Illuminating Co. (CEI) and the City of Cleveland and later dismissed the claim against CEI. III. Appellants' assignments of error are as follows: "FIRST ASSIGNMENT OF ERROR "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFFS/APPELLANTS IN GRANTING SUMMARY JUDGMENT WHERE DEFENDANT/APPELLEE CITY OF CLEVELAND WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW AND WHERE REASONABLE MINDS COULD DIFFER AS TO WHETHER THE PLAINTIFFS/APPELLANTS DEPARTED FROM AN ORDINARY TRAVELLED WAY AND WERE CONTRIBUTORILY NEGLIGENT. "SECOND ASSIGNMENT OF ERROR "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFFS/APPELLANTS IN GRANTING SUMMARY JUDGMENT WHERE DEFENDANT/APPELLEE CITY OF CLEVELAND WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW AND WHERE REASONABLE MINDS COULD DIFFER AS TO WHETHER THE PLAINTIFFS/APPELLANTS NEGLIGENCE, IF ANY, BARS RECOVERY "THIRD ASSIGNMENT OF ERROR "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFFS/APPELLANTS IN ALLOWING THE DEFENDANT/APPELLEE CITY OF CLEVELAND TO RELY ON ITS ANSWERS TO PLAINTIFFS/APPELLANTS INTERROGATORIES TO ESTABLISH LACK OF NOTICE OF THE EXISTENCE OF A DANGEROUS CONDITION." - 3 - Appellants, in their first assignment of error, contend that there are genuine issues of material fact sufficient to overcome appellee's motion for summary judgment. We agree. "(C) *** Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, 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, such party being entitled to have the evidence or stipulation construed most strongly in his favor." The Ohio Supreme Court in Priestere v. State (1961), 172 Ohio St. 28, interpreting R.C. 2311.04.1, which today is Civ. R. 56(C), stated: "A summary judgment which represents 'a final determination of the rights of the parties in an action' and hence comes within the definition of a judgment set forth in R.C. 2323.01, can be rendered under R.C. 2311.04.1 only 'if the pleadings, depositions, answers to interrogatories, admissions of the genuineness of papers and documents, and affidavits *** showing that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law *** upon the whole case or for all the relief asked." This court, in following the general rule in Ohio courts, held in Walker v. City of Parma (May 31, 1991), Cuyahoga App. No. 60540, unreported, that "in reviewing a summary judgment, pursuant to Civ. R. 56(C), (1) it must be shown that no genuine fact remains to be litigated; (2) that the moving party is entitled to judgment as a matter of law; and (3) that in weighing the evidence in the light most favorable to - 4 - the non-moving party, reasonable minds can come to but one conclusion and that conclusion must be adverse to the non-moving party." See also Krajnik v. Lakewood City School District (Apr. 26, 1990), Cuyahoga App. No. 56901, unreported. Johnson v. New London (1988), 36 Ohio St. 3d 600. Appellants' cause of action is based on a negligence claim against the City of Cleveland. Appellants argue that the City of Cleveland was negligent in its failure to keep the traffic median open and free of nuisance. In order to defeat a summary judgment motion in a negligence case, a plaintiff must establish that (1) a duty is owed to him by the defendant, (2) defendant breached that duty, (3) plaintiff's injury was proximately caused by defendant's breach, and (4) plaintiff sustained an injury. Keister v. Park Central Lanes (1981), 3 Ohio App. 3d 19. Appellants argue that the duty owed to them by appellee is set forth in R.C. 723.01, which states: "Municipal corporations shall have special power to regulate the use of the streets. Except as provided in section 5501.49 of the Revised Code, the legislative authority of a municipal corporation shall have the care, supervision, and control of the public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the municipal corporation, and the municipal corporation shall cause them to be kept open, in repair, and free from nuisance." The Ohio Supreme Court in Taylor v. Cincinnati (1944), 143 Ohio St. 426, held that: "R.C. 723.01 *** 'does not enjoin upon municipalities a specific legal requirement, but provides a general rule of conduct and makes negligence the basis of liability for its violation, unless an absolute nuisance is proven to exist.' The nature of this duty - 5 - is set forth in the fifth paragraph of the syllabus of Taylor as being a requirement of 'reasonable care and vigilance, in view of all the surroundings, to keep such streets and ways in the reasonably safe condition for travel in the usual and ordinary modes, and does not exact that which is unreasonable or impracticable.'" "Under Ohio law, the existence of duty depends on the foreseeability of the injury." Littleton v. Good Samaritan Hosp. (1988), 39 Ohio St. 3d 91; Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77; Gideon v. East Ohio Gas Co. (1934), 128 Ohio St. 335. Therefore, in the within case, action lies if appellants' injuries were foreseeable and preventable by the city's exercise of reasonable care. Appellee advanced two arguments in its motion for summary judgment and in its brief, which we shall address. Appellee argues that the traffic median upon which appellants sustained their injuries was not an "ordinary travelled way". Therefore, appellants' injuries did not come within the provisions of R.C. 723.01. Secondly, appellee argues that appellants were negligent per se for walking on the median. The City of Cleveland's Municipal Ordinance Section 471 states in pertinent part: "C.O. 471.03 Crossing Roadway Outside Crosswalk "(c) Between adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk. "See also: R.C. 4511.48(C); R.C. 4511.91(LL)(2) "C.O. 471.05 Walking Along Highways "(a) Where a sidewalk is provided and its use is practicable, no pedestrian shall walk along and upon an adjacent roadway. - 6 - "See also: R.C. 4511.50(A) "C.O. 471.11 Using Ordinary Care "(a) No person shall enter upon, walk in or cross any roadway in such a manner as to endanger his life or limb. Every person shall at all times and places exercise ordinary care for his own protection and safety. "(b) No person shall cross a roadway except at a crosswalk when any crosswalk is within 300 feet of the point of crossing." Appellants argue that they started crossing the street through a crosswalk when the light was on "Walk" and when they got to the median, the light turned to "Don't Walk". Appellants, therefore, had a choice of either being hit by passing cars or being on the median. The duty imposed by R.C. 723.01 to keep the streets in repair and avoid creating a nuisance does not change when the path is not "an ordinary travelled way" assuming that we can have a precise definition of what is an "ordinary travelled way". By this we mean that the city has an absolute duty at all times to keep the public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within its municipal corporation free from nuisance. This duty is not shared between the city and an injured party. The city's duty is independent of the conduct of the injured party. When nuisance is shown to exist, two inquiries are made (1) whether the nuisance is absolute. If the plaintiff proves an absolute nuisance, the city is negligent per se, assuming plaintiff can show that he was (a) injured (b) he is among the group the statute intended to protect (c) and that his injury was the type - 7 - of injury the statute intended to prevent. (2) Where the nuisance is not absolute, the plaintiff's action will be based on ordinary negligence, the inquiry of which is, whether the city took reasonable care and vigilance in view of the surrounding circumstances to keep such city controlled places reasonably safe for their proper use. See Taylor, supra. The inquiry does not end there. The plaintiff's conduct is also reviewed in two steps. Firstly, where the plaintiff's conduct is specifically prohibited by statute or ordinance, in mandatory terms, outside a showing of necessity to deviate from the prescribed statutory conduct, plaintiff will be negligent per se. Plaintiff recovers nothing if his conduct is negligent per se even where the city is ordinarily negligent in not keeping the controlled area where the injury occurred free from nuisance. Secondly, where the plaintiff's conduct is not mandatorily prohibited by statute or city ordinance, plaintiff's conduct cannot be negligent per se, but will be examined under ordinary negligence theory, the determination of which will be whether he exercised ordinary care for his own safety looking at the totality of the circumstances. In a negligence action, where sufficient facts exist showing a possible breach, summary judgment is improper. We cannot hold as a matter of law that when all the evidence is construed most strongly in favor of appellants that reasonable minds can conclude that appellee did not breach a duty of care to appellants. We equally disagree with appellants that the city is negligent per se. On the authority of Taylor, supra, appellants - 8 - have failed to show that an absolute nuisance existed. Therefore, the argument of negligence per se by appellants is without factual foundation and is not supported by the record. The only issue left to be resolved is that of reasonable care. In the within case, there are inquiries to be made by the trier of fact, to arrive at the truth of the matter which were not made, and that makes it difficult for us to hold as a matter of law that the city is not liable to the plaintiff. Where the inquiries as stated supra are carefully reviewed in light of the facts and circumstances of this case, the trier of fact might find the city not liable and the city vindicated. The circumstances of this case warrants such inquiry. Our holding in the case sub judice must not be viewed as standing for the proposition that all negligence actions against a city must go to the jury. There are certain facts in the within case that cannot be ignored or explained without further inquiry. Plaintiff, Nancy Kelly, alleged that she could not stand still while holding her child at the time the light turned to "Don't walk" because of the nature of the traffic. Where it is impracticable for a pedestrian to walk because the light says it cannot, common sense tells us that safety comes first before logic. The City did not have signs forbidding one to walk on the median. We will assume because it is foreseeable that a pedestrian who cannot complete a walk across when the traffic light changes can and is expected to stop and walk on the median if necessary. Even where there is a - 9 - sign forbidding walking on the median, common sense still dictates that necessity can override such prohibition. In the within case, it is neither inconceivable nor unforeseeable that a pedestrian will walk on the median so wide and long as the one in question. We cannot hold as a matter of law that appellants used the median in an unexpected or extraordinary manner. Lovick v. Marion (1975), 43 Ohio St. 2d 95. Therefore, the only issue to be determined is whether the party exercised ordinary care for his own safety, which is a question for the jury. Ruggeiro v. Pescosolido (1962), 89 Ohio Law Abs. 065. Appellee contends that appellants were negligent per se in departing from the designated crosswalk. We fail to see under what portion of either R.C. 4511 or Cleveland Municipal Ordinance 471 appellee's authority lies. For appellants to be negligent per se, appellee (1) must show that the appellants were in the group the statute intended to protect, (2) the injuries sustained by appellants were the type the statutes intended to prevent. We cannot say from reading the statute that the injuries sustained by plaintiffs was the type the statute intended to prevent. Firstly, appellants did not walk on an adjacent roadway in total disregard for the sidewalk. See C.O. 471.03 and C.O. 471.05, supra. Secondly, whether appellants' walk on the median constituted a danger to their life or limb is a jury question that should not be decided as a matter of law. See C.O. 471.11. The city acknowledged in its brief that the condition which created appellants' injuries could have been created by "an act - 10 - of vandalism or such an occurrence as a vehicle travelling up on to the median over the cover." We fail to see why it is foreseeable for a vehicle to travel on the median and create such a condition but is unforeseeable for a pedestrian to so travel. Appellee's argument is unpersuasive and the issues should have been presented to the jury. It must be noted that when a statutory enactment prescribes a general rule of conduct, negligence per se is inapplicable. In Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, applicable part of paragraph three, the Ohio Supreme Court held as cited by the DiFederico court, that: "'*** where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, negligence per se has no application and liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case." "Section 4511.50, Revised Code, is such a statute, except that in this instance it's for the pedestrian's own safety. By the same token, the test is due care by a reasonably prudent person, which makes a jury question." DiFederico, supra, at 249. See also Koppelman, a Minor v. Springer a Minor (1952), 157 Ohio St. 117. In Frye, supra, at 360, the court held: "Applying the principles of statutory construction set out above, we find that R.C. 4511.50 is not mandatory. ****" "By its own language, the statute presents a question for the trier of the facts." The Frye court citing Swobodo v. Brown (1935), 129 Ohio St. 512, 523, concluded: "'*** But, where duties are undefined, or defined only in abstract or general terms, leaving to the jury - 11 - the ascertainment and determination of reasonableness and correctness of acts and conduct under the proven conditions and circumstances, the phrase negligence per se has no application.' "It follows that when a pedestrian is struck while walking on, or near a roadway, many questions are asked which can only be determined by the trier of the facts. Under such circumstances, the pedestrian cannot be said to be negligent per se." Therefore, in the within case, we disagree with the city that R.C. 4511.50 should be interpreted to order a pedestrian to stand still on the median when he cannot continue a forward movement because of a change of a traffic light. We hold that when a pedestrian is injured while walking on a median when circumstances necessitate such a walk, it becomes a question of fact for the jury to determine whether the pedestrian exercised due care in compliance with the requirements of the statute or city ordinance. See Frye v. Tobler (1981), 2 Ohio App. 3d 358. DiFederico v. Reed (1969), 21 Ohio App. 2d 137. We equally hold that a median is not a roadway as contemplated by R.C. 4511.50, therefore, appellants cannot be held to be negligent per se in violation of R.C. 4511.50. See R.C. 4511.01(EE). Since there is a question which must be submitted to the trier of facts, the city is not entitled to summary judgment. Accordingly, appellants' first assignment of error has merit and, therefore, is sustained. IV. Appellants, in their second assignment of error, contend that the trial court erred by granting appellee's motion for - 12 - summary judgment on appellee's assertion that appellants were barred from recovery because they were contributorily negligent. Since we cannot find from the trial court's journal entry such reasoning, we look to the record before us. Appellee, in its motion for summary judgment and in its brief, argues that "appellant's negligence exceeded any negligence on the part of the city". Appellee cited this court's decision in Mitchell v. Ross (1984), 14 Ohio App. 3d 75, as controlling. We disagree. The plaintiff in Mitchell did not deny being completely negligent but relied on the doctrine of "last clear chance". In the within case, appellants are not admitting negligence but argue that their walking on the median was necessitated by the changing of the traffic light and the nature of the travelled highway. The issue, therefore, whether appellants were contributorily negligent is again for the jury to determine. See Ziebro, Admx. v. Cleveland (1952), 157 Ohio St. 489. We cannot hold as a matter of law that appellants' negligence was greater than appellee's nor is appellants' contributory negligence, if any, a bar to their recovery. R.C. 2315.19 states in pertinent part: "(A)(1) Contributory negligence or implied assumption of the risk of the complainant or of the person for whom the complainant is legal representative may be asserted as an affirmative defense to a negligence claim. "(2) Contributory negligence or implied assumption of the risk of a person does not bar the person or his legal representative as complainant from recovering damages that have directly and proximately resulted from the negligence of one or more other persons, if the contributory negligence or implied assumption of the risk of the complainant or of the person for whom he is legal representative was no - 13 - greater than the combined negligence of all other persons from whom the complainant seeks recovery. ***" Appellee's argument that appellants' negligence was greater than appellee's is rejected as premature and should be an issue for the jury to decide. Appellants' second assignment of error is sustained. V. Appellants, in their third assignment of error, argue that the issue of notice should be decided by the jury and not by a summary judgment motion. We agree. Appellee argues that: "With respect to the issue of constructive notice, it was impossible for the City to determine the length of time the condition was in existence. However, it was the appellants' burden to prove that the condition existed long enough that it reasonably should have been discovered. The City could only check its records, which in this case revealed that the City had done no work removing handholes on the traffic median in the year preceding appellants' fall, had no complaints, and knew of no entity which for any reason might have been responsible for removing the cover." This case is analogous to Walker, et al. v. City of Parma, supra. In Walker, appellee, the City of Parma, stated in their affidavit, "based upon available complaint records, the City of Parma had no notice of any sidewalk defect at 7010 Wilber Avenue *** for at least two years prior to December 4, 1988 ****." This court stated: "We cannot hold that such denial is sufficient to absolve the City of liability based on what it knows or should have known. It is a well established rule of law that notice can be actual or constructive and that constructive notice as well as actual notice of defect will support a finding of liability. Boles v. Montgomery (1950), 153 Ohio St. 381. Whether in the instant case the City had a constructive notice should not be decided in a summary judgment ruling, but should - 14 - be decided when all the surrounding circumstances are viewed, most appropriately by the jury. As the Ohio Supreme Court stated in Griffin v. Cincinnati (1954), 162 Ohio St. 232, overruled for other reasons, see Gallagher v. Toledo (1959), 168 Ohio St. 508: "'*** Whether the condition complained of had existed for such a period of time and under such circumstances that a reasonably, prudent person, having charge of such matters for the city in the exercise of ordinary care would have known of such condition.'" Judge Ann Dyke, in her Concurring Opinion in Walker, supra, concluded that: "The defect could have come to the attention of Parma through police, garbage collectors, etc. The fact that there were no complaints in a certain time period does not establish that there was never notice." In light of our holding in Walker, supra, appellee's contention that it had no complaints or knowledge of who "might have been responsible for removing the cover" is insufficient and unpersuasive to overcome the issue of whether it actually or constructively knew of the condition of the median. Appellants' third assignment of error is sustained. The trial court's judgment is reversed and remanded. - 15 - This cause is reversed and remanded. It is, therefore, considered that said appellants recover of said appellee their costs herein. It is ordered that a special mandate be sent to said court 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. Exceptions. PATTON, P.J., CONCURS; BLACKMON, J., DISSENTS (SEE ATTACHED DISSENTING OPINION). SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59044 : NANCY KELLY, et al. : : Plaintiff-Appellant : : DISSENTING -vs- : : OPINION CLEVELAND ELECTRIC ILLUMINATING : COMPANY : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1991 BLACKMON, J., DISSENTING: I must respectfully dissent from the majority's opinion in this case. At the outset, there are some salient facts in the record which must be mentioned, and they are as follows: The Kelly family, appellants, began to cross Superior Avenue in a southbound direction towards the State Office Building. When appellants approached the median, which runs down the middle of Superior between West 6th and West 9th Streets, the illuminated pedestrian traffic control device changed to "Don't Walk." The design of the crosswalk at West 9th and Superior is such that the crosswalk is split, or divided, by the median. The - 2 - appellants had crossed the westbound lanes of Superior, in the northern half of the split crosswalk, when the pedestrian traffic control device changed to "Don't Walk." At this point, the appellants had reached the median safely. Indeed, as the majority notes, Mrs. Kelly testified that because of the nature of the traffic, they could not continue to go across or go back to the corner. Her testimony was that the safest alternative was to walk on the median to avoid being struck by the cars. I am not persuaded, as the majority seems to be, that this testimony raises a genuine issue of fact. Instead of waiting safely on the median, as they were supposed to, for the illumination of the pedestrian traffic control device to "Walk" for the southern half of the split crosswalk, the appellants walked east right past the crosswalk on the median, completely ignoring the southern portion of the split crosswalk. They proceeded along the traffic median walking eastbound with the intention of either jaywalking when the traffic cleared or walking all the way down the ever narrowing median to West 6th Street, which is the narrowest portion of the median. Having clarified those facts, I now turn to the majority's legal analysis. The majority states as its holding, "we hold that when a pedestrian is injured while walking on a median when circumstances necessitate such a walk, it becomes a question of fact for the jury to determine whether the pedestrian exercised due care in compliance with the requirements of the statute or - 3 - city ordinance." (Emphasis added.) The majority opinion goes on to state "we equally hold that a median is not a roadway as contemplated by R.C. 4511.50, therefore, appellants cannot be held to be negligent per se in violation of R.C. 4511.50. *** Since there is a question which must be submitted to the trier of facts, the city is not entitled to summary judgment." The majority asserts the following as a rule of law pertaining to R.C. 723.01: The duty imposed by R.C. 723.01 to keep the streets in repair and avoid creating a nuisance does not change when the path is not "an ordinary travelled way" assuming that we can have a precise definition of what is an "ordinary travelled way". By this we mean that the city has an absolute duty at all times to keep the public highways, streets, avenues, alleys sidewalks, public grounds, bridges, aqueducts, and viaducts within its municipal corporation free from nuisance. (Emphasis added.) It is my view that the majority misstated the rule of law in R.C. 723.01. Unquestionably, the duty imposed by 723.01 on the City of Cleveland does change when the path in question is a deviation from the usual and ordinary mode of travel. In fact, the duty is abdicated. As early as 1900, the Ohio Supreme Court has made this rule clear. In the case of City of Dayton v. Taylor (1900), 62 Ohio St. 11, the Ohio Supreme Court stated at 15: It is the duty of a municipal corporation to keep its streets in repair and free from obstruction and nuisance. It is sufficient, however, if the streets are kept in reasonably safe condition for the ordinary modes of travel. It is impossible to so conceive a plan of construction, and to so carefully maintain it, that injuries may not happen on the streets to heedless persons; and therefore cities and villages are not held liable as insurers against accidents occurring upon their streets, and are held only to the exercise of reasonable caution and foresight in providing for the - 4 - use of the streets in the ordinary modes, and with ordinary care, by the traveler. (Emphasis added.) In light of this statement by the Ohio Supreme Court, it is clear that the duty imposed by R.C. 723.01 only applies to the utilization of a street, in the ordinary mode of travel and that duty is abdicated when the path is not a usual and ordinary mode of travel. The rationale for this qualification on the imposition of a duty under R.C. 723.01 is stated in Taylor at 13-14, "the city must keep its streets in a reasonably good condition for use in the customary way by ordinary people. It is not an insurer against accidents, nor of safety of people, and it is not bound to anticipate improbable or unprecedented events, and to provide against their probable results." This rationale, as stated by the Ohio Supreme Court, should leave no doubt about the incorrect proposition asserted by the majority that a city's duty under R.C. 723.01 is "an absolute duty at all times ***" The fact that R.C. 723.01 only imposes a duty on a municipal corporation for usual and ordinary modes of travel has been continuously reaffirmed in a line of Ohio Supreme Court cases. The case of Lovick v. Marion (1975), 43 Ohio St. 2d 171 states that "past decisions of this court recognize the statutory objective of R.C. 723.01, clearly expressed in Frankhauser,/1/\ and establish that liability under the statue is not imposed upon a /1/\ Frankhauser v. Mansfield (1969), 19 Ohio St. 2d 102, 249 N.E. 2d 789. - 5 - municipality where the condition in question does not render a street unsafe for usual and ordinary modes of travel." (Emphasis added.) Id. at 172-73. Additionally, in cases of this nature, it has often been stated that R.C. 723.01 must be strictly construed against a finding of municipal responsibility. The statute is in derogation of the common-law principle that municipal corporations, when in the exercise of governmental functions are immune from suit. Id. (Emphasis added.) Having established that the duty of a city under R.C. 723.01 is not absolute and only applies to use of a street in its usual and ordinary mode of travel, the analysis must now turn to whether the appellants in this case were using the street in its usual and ordinary mode of travel. In my opinion, the appellants were not utilizing the street in its usual and ordinary mode of travel. The majority states that "where the plaintiffs' conduct is specifically prohibited by statute or ordinance, in mandatory terms, outside a showing of necessity to deviate from the prescribed statutory conduct, plaintiff will be negligent per se." It is readily apparent that the appellant's conduct was specifically prohibited, in mandatory terms, by two of the City of Cleveland Codified Ordinances cited in the majority opinion. Furthermore, it is readily apparent that there was no necessity for appellants to deviate from the prescribed statutory conduct. - 6 - Even utilizing the rationale of the majority, the conclusion has to be that the appellants were negligent per se. City of Cleveland Codified Ordinance 471.03 states in pertinent part: "(c) Between adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk." (Emphasis added.) City of Cleveland Codified Ordinance 471.11 states in pertinent part: "(a) No person shall enter upon, walk in or cross any roadway in such a manner as to endanger his life or limb. Every person shall at all times and places exercise ordinary care for his own protection and safety." "(b) No person shall cross a roadway except at a crosswalk when any crosswalk is within 300 feet of the point of crossing." In the case sub judice, the appellants were between adjacent intersections (West 6th and West 9th and Superior) at which traffic signals were in operation. The appellants were bound by Cleveland Codified Ordinance 471.03 to cross at a marked crosswalk. Thus, they were bound to wait safely on the median for the pedestrian traffic control device to illuminate to "Walk" and then cross the eastbound traffic in the southern half of the crosswalk. City of Cleveland Codified Ordinance 471.11 also prohibits the appellants' conduct in mandatory terms. Consequently, even utilizing the rationale of the majority, the appellants were negligent per se. There was no necessity for their deviation. When appellants could have and should have remained safely on the median until they could cross safely in - 7 - the crosswalk with the assistance of traffic control devices, the safest alternative was to obey the pedestrian traffic control device and cross in the designated crosswalk, when the pedestrian traffic control device illuminated to "Walk." In conclusion, as a matter of law pursuant to the Ohio Supreme Court cases of Taylor and Lovick, supra, R.C. 723.01 only imposes a duty upon a municipality to keep its streets open, in repair, and free from nuisance when the streets are being used in their usual and ordinary mode of travel. As a matter of law, when a street is not being utilized in its usual and ordinary mode of travel, there is no liability imposed on a municipality pursuant to R.C. 723.01. Id. Consequently, the majority is incorrect in its statement that the duty under R.C. 723.01 does not change when the path is not an ordinary travelled way. It is also incorrect, as a matter of law, that the duty imposed under R.C. 723.01 is absolute as the majority opinion suggests. In fact, when there is a deviation from the usual and ordinary mode of travel, as a matter of law, there is no duty or liability imposed upon a municipality pursuant to R.C. 723.01. Construing the evidence in a light most favorable to the appellants, as a matter of law, there are no genuine issues of material fact. There is no genuine issue of material fact that walking on a median in the middle of Superior Avenue in downtown Cleveland, instead of utilizing a crosswalk that contained no impediments, was obvious, and contained an operating pedestrian - 8 - traffic control device, is a deviation from the usual and ordinary mode of travel. As a matter of law, there is no genuine issue of material fact that there was not a necessity, only the appellants' impatience, to deviate from crossing in the crosswalk. As a matter of law, there is no genuine issue of material fact that the appellants conduct was a complete violation of the mandatory terms of City of Cleveland Codified Ordinances 471.03 and 471.11, rendering the appellants negligent per se. This conduct would further bar any recovery by the appellants. Summary judgment was proper. .