COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59291 ROBERT PHILLIPS, ET AL. : : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION HURON ROAD HOSPITAL, ET AL. : : : Defendants-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 24, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 121401 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendant, Huron Road Hospital: MURRAY RICHELSON, ESQ. David A. Katz Co., L.P.A. RICHARD RYMOND, ESQ. 842 Terminal Tower 113 St. Clair Avenue Cleveland, Ohio 44113 Cleveland, Ohio 44113 For Defendant-Appellee, City of East Cleveland: JAMES H. HEWITT, III, ESQ. Director of Law MELODY J. STEWART, ESQ. Assistant Law Director City of East Cleveland 14340 Euclid Avenue East Cleveland, Ohio 44112 - 1 - HARPER, J.: I. Appellants, Robert Phillips and Melvina Phillips, appeal from the judgment of the Cuyahoga County Court of Common Pleas which granted summary judgment for appellee, the City of East Cleveland. For the reasons that follow, we affirm. II. Robert Phillips filed a complaint in negligence against Huron Road Hospital and the City of East Cleveland on December 19, 1986. Mr. Phillips alleged that he fell while crossing a street as he walked towards the Huron Road Hospital. Mr. Phillips claimed that he tripped and fell over a concealed defect in the sidewalk. He alleged that the defect which caused his injury was concealed by snow and slush. Mr. Phillips fractured his hip as a result of the fall. Melvina Phillips sued for medical expenses, loss of services and consortium of her husband, Robert. III. Appellants' assignments of error are as follows: "I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS THERE ARE MATERIAL ISSUES OF FACT YET TO BE RESOLVED. "II. THE TRIAL COURT ERRED IN EXCLUDING THE DEPOSITION OF DEFENDANT'S EMPLOYEE." Appellants, in their first assignment, argue that the trial court erred in granting appellee's motion for summary judgment when there are material issues of fact yet to be resolved. - 2 - Civ. R. 56 states in pertinent part: "(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. 323.01, 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 the non-moving party, reasonable minds can come to but one conclusion and that conclusion must be adverse to the non-moving party,." - 3 - 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 was based on a negligence claim against appellee, the City of East Cleveland. Appellants argue that appellee was negligent in the maintenance of a sidewalk within its corporation limit. Appellee, the City of East Cleveland's duty to maintain the sidewalk is premised on R.C. 723.01, which reads: "Legislative authority to have care, supervision, and control of streets. "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 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.'" The basic issue presented, bearing in mind the rule in Taylor, supra, is whether there is a substantial defect in the - 4 - sidewalk to cause reasonable minds to conclude that such defect made the sidewalk unsafe for travel in the usual and ordinary modes. Cash v. Cincinnati (1981), 66 Ohio St. 2d 300, 305 (Whiteside, J., concurring). We hold that appellants in the case sub judice have failed to show that the defect substantially made the sidewalk unreasonably unsafe for travel. "A municipality as a matter of law, cannot be held responsible as to every depression, difference in grade or unevenness in its streets and sidewalks." Deckant v. City of Cleveland (1951), 155 Ohio St. 498. Appellants did not put forward any argument on the issue of the substantiality of the defect. Appellants' only evidence was an unauthenticated photograph which did not demonstrate the height of the variation on the sidewalk or even when the photograph was taken. See Kimball v. Cincinnati (1953), 160 Ohio St. 370. Appellant, in addition to the photograph, argued in their brief: "For the purpose of this motion the court must construe the available evidence in a light most favorable to Plaintiff. At this point we must conclude that there was a defect in property that caused Plaintiff to fall. Since the only evidence as to what happened comes from the Plaintiff, we must conclude that Plaintiff was not himself comparatively negligent. Accordingly, Defendant is not entitled to summary judgment as a matter of law." Appellants employ this court to make a conclusion without providing this court with evidence to make such a conclusion. Appellants' argument lacks substance and deserves the treatment given to it by the lower court. Accordingly, appellants have failed to establish that summary judgment is improper. See - 5 - Hodgkinson v. Dunlop Tire and Rubber Corp. (1987), 38 Ohio App. 3d 101. Appellee argues that since it did not have notice of the defect, summary judgment was proper. Appellee, in support of this contention, attached an affidavit in which it claimed that the city records failed to show any complaints of sidewalk defects. In Boles v. Montgomery (1950), 153 Ohio St. 381, the Ohio Supreme Court held that notice can be actual or constructive and that constructive notice as well as actual notice of defect will support a finding of liability. See also Griffin v. Cincinnati (1954), 162 Ohio St. 232, overruled for other reasons; see Gallagher v. Toledo (1959), 168 Ohio St. 508. This court held in Walker, et al. v. City of Parma (May 30, 1991), Cuyahoga App. No. 60540, that an affidavit claiming that the city did not have notice because there was no record of any complaints being filed with the city was insufficient to overcome the issue of notice. However, in the within case, appellants' failure to show that there was a substantial defect makes the issue of notice irrelevant. Appellants' first assignment of error is overruled. IV. Appellants, in their second assignment of error, argue that the trial court erred by excluding the deposition of appellee's employee attached in their supplemental brief as being untimely. We agree. The trial court's journal entry of August 17, 1988 stated: "UPON RECONSIDERATION, DEFT CITY'S MOTION FOR SUMMARY JUDGMENT IS granted. THE DEPOSITION PORTION ATTACHED - 6 - TO PLTF'S SUPPLEMENTAL BRIEF, FILED 8-8-88, IS NOT RELIED UPON. THIS EVIDENCE IS NOT IN ACCORD WITH CIVIL RULE 32(A), REQUIRING THE DEPOSITION TO BE FILED AT LEAST ONE DAY PRIOR TO HEARING. FURTHER, THE PORTION IS NOT AUTHENTICATED." The trial court, in its journal entry of July 19, 1988, stated: "PLTF'S BRIEF IN OPPOSITION TO SUMMARY JUDGMENT WAS SERVED/FILED IN VIOLATION OF CIVIL RULE 5(D). RATHER THAN STRIKING SAME, DEFT'S MOTION FOR RECONSIDERATION OF HIS SUMMARY JUDGMENT MOTION IS granted. PARTIES MAY FILE ADDITIONAL BRIEFS/EVIDENCE RE S.J. UNTIL 8-8-88. RE-RULING ON S.J. TO FOLLOW THAT DATE." A reading of the trial court's journal entry of July 19, 1988 unequivocally granted appellants until 8-8-88 to file their deposition. The record shows that appellants complied with the court's ruling when they filed their motion in question on 8-8- 88. Civ. R. 32(A) states: "Every deposition intended to be presented as evidence must be filed at least one day before the day of trial or hearing unless for good cause shown the court permits a later filing." The trial court's allowance of the deposition to be filed on 8-8- 88 was within its discretionary powers pursuant to Civ. R. 30(A) and appellants' reliance on the trial court's order was not a violation of the civil rules. The trial court held also that the deposition was not authenticated. The record reveals that the deposition was authenticated by Karen E. Thomas, who is a Notary Public in the State of Ohio. However, appellant did not comply with Civ. R. 30(F), which states as follows: "(1) Upon request of any other party or order of the court the officer shall transcribe the deposition. When he transcribes the deposition he shall certify on the deposition that the witness was fully sworn or - 7 - affirmed by him that the deposition is a true record of the testimony given by the witness." We read Civ. R. 30(F) to require that the deposition certified be the entire deposition and not a portion of the deposition. We follow this interpretation for two reasons. Firstly, if the legislature intended that a portion of a deposition will satisfy Civ. R. 30(F), they would have so stated. Secondly, it would be practically a nightmare to require that the trial court make decisions based on portions of a deposition which may not fit together. Lawyers are known to cite only portions of cases that suit their argument and leave out the rest. Depositions, when allowed to be in parts and pieces, will put the trial court in a position of reading only those portions that the proponent wishes the court to read, thereby denying the court the benefit of reading the entire deposition. We take this to be a disservice to the trial process and in contravention to Civ. R. 30(F). Therefore, we hold that the trial court's refusal to consider appellant's deposition was not an abuse of discretion. Appellants' second assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellants its 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 Common Pleas 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. KRUPANSKY, C.J., CONCURS IN JUDGMENT ONLY; LEO SPELLACY, J., CONCURS IN JUDGMENT ONLY. 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. .