COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60099 ANNETTE ANDERSON : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : THE CITY OF CLEVELAND : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. 169784. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Donna Williams-Alexander, Esq. Seeley, Savidge & Aussem 1940 E. 6th Street 800 Baker Building Cleveland, OH 44114-2239 For Defendant-Appellee: Tim Watterson, Esq. City Hall - Room 106 601 Lakeside Avenue Cleveland, OH 44114 -2- DAVID T. MATIA, C.J.: Plaintiff-appellant Annette Anderson appeals the judgment of the Cuyahoga County Court of Common Pleas which granted summary judgment for defendant-appellee City of Cleveland. Appellant's foot was injured when she fell on an uncovered water box in the city street. Appellant assigns error to the court's finding that there was no genuine issue of material fact as to the city's notice requirement of the missing water box cover. On review, we affirm the judgment of the trial court. STATEMENT OF THE FACTS On February 21, 1989, plaintiff-appellant Annette Anderson, was walking across a city intersection at Ontario and Rockwell streets when her foot became entangled in a water box owned and maintained by the defendant-appellee City of Cleveland. Appellant fell and sustained a broken ankle. The cover of the water box was missing. It was later found a distance of approximately 100 feet from the water box. Appellant Anderson is blind and walks with the help of a golden retriever guide dog. She often crossed the intersection on the way to work and always received help from the traffic controller on duty. STATEMENT OF THE CASE On May 17, 1989, appellant Anderson filed a complaint against the City of Cleveland alleging negligence and damages suffered as a result of appellee-city. Appellee-city thereafter filed a motion for a more definite statement. On September 21, 1989, appellant Anderson filed a -3- motion for leave to file amended complaint and thereafter filed an amended complaint. On October 19, 1989, appellee filed an answer to the complaint generally denying appellant's allegations of negligence and raising affirmative defenses. On April 10, 1990, a pretrial was conducted. At that time, the court ordered a jury trial for September 24, 1990. A pretrial was scheduled for September 18, 1990, and a discovery cut-off date was set for August 24, 1990. On March 1, 1990, appellee filed its motion for summary judgment. On June 12, 1990, the trial court ruled on appellee's motion for summary judgment granting appellee's motion. Appellant Anderson timely appeals from the granting of the summary judgment motion. ASSIGNMENTS OF ERROR I, II AND III Appellant's Assignments of Error I, II and III relate to similar conclusions of law and fact and therefore will be discussed concurrently. I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO CIV. R. 56 AS THERE ARE GENUINE ISSUES OF MATERIAL FACT FOR CONSIDERATION BY THE TRIER OF FACT. II. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO CIV. R. 56 AS BASED ON THE EVIDENCE, REASONABLE MINDS COULD COME TO MORE THAN ONE CONCLUSION, SUCH -4- CONCLUSION(S) NOT BEING ADVERSE TO PLAINTIFF-APPELLANT. III. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO CIV. R. 56 PRIOR TO THE CLOSE OF THE COURT ORDERED PERIOD FOR DISCOVERY. Appellant argues in her three assignments of error that the trial court erred in granting appellee's motion for summary judgment. Specifically, appellant argues that there were genuine issues of material fact related to the issue of appellee-city's duty to keep the streets free from nuisance. These assignments of error are not well taken. ISSUE: WHETHER THE CITY BREACHED ITS DUTY TO KEEP THE STREETS "OPEN, IN REPAIR, AND FREE FROM NUISANCE Appellant argues that the city's duty derives from former R.C. 723.01 (now replaced by R.C. 2744.02(B)(3)), which provides in part: Municipal corporations shall have special power to regulate the use of the streets. The legislative authority of such municipal corporation shall have the care, supervision, and control of public highways, streets, [and] avenues ... within the municipal corporation, and shall cause them to be kept open, in repair, and free from nuisance. This statute requires the city to exercise reasonable care to keep the street free from any nuisance which renders it unsafe for normal travel. Adkins v. Ontario (1983), 8 Ohio St. 3d 45, 46; Dickerhoof v. Canton (1983), 6 Ohio St. 3d 128, paragraph two of the syllabus; Frankhauser v. Mansfield (1969), 19 Ohio St. 2d 102, 108. -5- However, the city has no duty to eliminate a nuisance on the roadway unless it had knowledge or notice of its existence. Ruwe v. Bd. of Springfield Twp. Trustees (1987), 29 Ohio St. 3d 59, 60; Cleveland v. Amato (1931), 123 Ohio St. 575, paragraph one of the syllabus. In the case sub judice, after reviewing the briefs, affidavits, depositions and other evidence before the court, reasonable minds could conclude that there was no evidence that appellee-city had notice, actual or constructive, of the missing cover on the water box. Further, there was no evidence that the appellee-city had created the nuisance, therefore the issue of notice was dispositive. The requirement of notice is an essential element in a tort liability claim. For municipal liability to be incurred under R.C. 723.01, it must be shown that there was a faulty condition in the street amounting to a nuisance which was either caused by the municipality or negligently permitted to remain despite actual or constructive notice to the municipality. Ruwe v. Board of Township Trustees of Springfield Township, supra. In Ruwe, the Supreme Court affirmed the prerequisite of notice before liability can be incurred, and also held that R.C. 723.01 must be construed in favor of the municipality. Ruwe, at 60-61. The deposition testimony of the appellant Anderson, and of the traffic controller, Mary Wilcox, and the affidavit of a city employee who worked in the water department showed that there was -6- no evidence that the city had actual or constructive notice of the missing water box cover. Mary Ann Wilcox, traffic controller on duty when appellant fell, testified in her deposition that it was her duty to report hazardous conditions in the street. Q. Do you have any responsibilities with respect to reporting, like manhole covers off in the street or anything? A. Yes, if you see them off. Q. Is that contained -- are those kind of responsibilities contained in any handbooks or was that mentioned in the training you received? A. No, it's just, if you see them off, I mean, you could be one of those type of people, if you see them off you tell radio that they're off, that's your job to do that, that's one of your functions to do that. Any law enforcement officer, if they see a thing that's hazardous to the people that's walking on the street, they supposed to report it. Q. Does that also include the sidewalks? A. Sidewalks, lights out. Q. So what you're told in training is just to report any hazardous condition that you see-- A. Right. Q. -- to the proper authorities? (Tr. 14.) The traffic controller testified that she did not observe that the water box cover was missing before appellant Anderson fell into the box. -7- Q. Did you see a cap on the hole, Mary? A. No. Q. Had you noticed that morning that there was a cap missing from this device?. A. No. Q. Had you noticed a cap missing previously, in that previous week or two? A. No. Q. Had you noticed such a thing, would you have notified the city or perhaps CEI or whoever else might be the person that is the caretaker of the device? A. Yes. (Tr. 48.) The traffic controller's testimony supports the fact that the city did not have actual notice of the missing water box cover. Mary Wilcox, the traffic controller on duty that morning, testified that she had been on duty at that intersection for the last several months. She further testified that she had not noticed that the cover was missing from the water box, not that morning, or not in the previous week or two. The traffic controller was the person who would have notified the proper city authorities regarding the missing water cover. The evidence indicates, therefore, that the city did not have actual notice of the missing cover. Appellant Anderson argues that since the cover was located some distance from the water box, an inference arises that the city created the nuisance or should have known that the cover was -8- missing "for a sufficient amount of time to give the city constructive notice." There is no evidence in the record to support appellant's allegation. Mr. Joseph Natran, employee of the Water Department and the custodian of the records, searched the records for the preceding seven months and did not find any reports of a missing cover at the Ontario and Rockwell intersection. Since there is no substantial evidence to support appellant's allegation that the city had sufficient time to take notice of the missing water box cover, we find that the trial court did not err in granting appellee-city's motion for summary judgment, as there were no genuine issues of material fact to submit to a jury for review. In response to appellant Anderson's third assignment of error that the court prematurely granted summary judgment prior to the close of the court ordered period for discovery, we reiterate that the regulation of discovery is a matter clearly within the sound discretion of the court pursuant to Rule 16(E). State v. Weind (1977), 50 Ohio St. 2d 224, 235. Finding no abuse of discretion, our court will not reverse a judgment based on competent credible evidence. City of Cleveland v. Northeast Ohio Regional Sewer District (1989), Cuyahoga App. No. 55709, unreported. Accordingly, the trial court is affirmed. -9- It is ordered that appellee recover of appellant 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. NAHRA, J. and FRANCIS E. SWEENEY, J., CONCUR. DAVID T. MATIA CHIEF 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. .