COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60496 GERALD SIEGEL : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION THOMAS NEFF, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 20, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 60496 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: BRENT L. ENGLISH, ESQ. STEPHANIE TUBBS JONES, ESQ. 140 Public Square BY: STEVEN J. CELEBREZZE, ESQ. 611 Park Building ASST. PROSECUTING ATTORNEY Cleveland, Ohio 44114 Court Tower - Ninth Floor 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant timely refiled his complaint after voluntary dismissal on June 5, 1989 alleging negligence against the Cuyahoga County Board of Commissioners. Appellant's complaint states that on June 28, 1985 appellant sustained physical injury and property damage to his bike when the front tire of his bike dropped into a crevice in Harvard Road. The crevice was approximately the width of his tire, one and a half inches, and varied in depth from four to eight inches. Appellant was thrown forward from his bike and landed forcefully. No bones were broken, however, appellant was in great pain for two weeks and used medication to control the pain and help him sleep. Appellant's complaint alleged that the Board of County Commissioners had responsibility for repair of the road and were negligent in failing to do so. Appellees filed a motion for summary judgment on June 20, 1990, which the trial court granted August 17, 1990. Appellant's response in opposition to appellees' motion was due thirty days from service of the motion, July 20, 1990. Local Rule of the Cuyahoga County Court of Common Pleas 11(I). On July 30, appellant's attorney filed a motion for an extension of time, asserting in an affidavit that he had lost contact with the appellant. The trial court failed to respond to the motion and granted appellees' motion for summary judgment eighteen days later. - 2 - Appellant asserts two assignments of error. I THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ABUSING ITS DISCRETION AND FAILING TO GIVE THE PLAINTIFF ADEQUATE TIME TO RESPOND TO THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT WHERE THE PLAINTIFF FULLY COMPLIED WITH THE REQUIREMENTS OF OHIO R. CIV. PROC. 56(F). Appellant asserts that the trial court abused its discretion in failing to grant the requested extension and to rule upon the motion requesting the extension. Civ. R. 56(F) reads as follows: When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion for summary judgment that he cannot for sufficient reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just. First, as pointed out by the appellees, 56(F) refers to "affidavits of a party." The affidavit attached to appellant's request for an extension was from the attorney. Given the nature of the difficulty, that appellant himself was unavailable to present an affidavit on the facts, we do not deem this to be a crucial flaw. However, Civ. R. 56(F) does require that "sufficient reasons" be given for an inability to "present by affidavits - 3 - facts essential to justify his opposition." (Emphasis added.) Simply asserting that appellant was temporarily missing was not a "sufficient reason" due to the fact that appellant had previously given a one hundred and seventeen page deposition which formed the basis of his opposition to the summary judgment motion. No new facts or questions are alleged to have arisen since the deposition was taken. Appellant's full account of the facts surrounding the accident from his perspective was available in his deposition testimony. Therefore, there was no inability on the part of the attorney to present the essential facts "to justify [appellant's] opposition." Civ. R. 56(F) allows discretion on the part of the trial court to order a continuance. In this case the trial court, in its discretion, chose not to allow the extension. This choice did not constitute an abuse of discretion. Appellant's first assignment of error is overruled. II THE TRIAL COURT IMPROVIDENTLY GRANTED A SUMMARY JUDGMENT TO THE DEFENDANTS AND THUS COMMITTED REVERSIBLE ERROR WHEN THE EVIDENCE SUBMITTED BY THE DEFENDANTS SHOWED THAT THERE WERE MATERIAL ISSUES OF FACT IN DISPUTE. Appellant argues that a jury could have determined that the County knew or should have known about the defect in the roadway which caused appellant's injuries and thus had a duty to repair it. He also alleges that a second question of fact remains in - 4 - dispute as to whether appellant was a "recreational user" of the road so as to preclude liability under R.C. 1533.181. Appellant relies on the deposition testimony of Carl Maenza to justify his conclusion that the county knew or should have know of the defect. This reliance is erroneous. A full and careful reading of Mr. Maenza's deposition does not reveal that the county was ever on notice of the defect. In fact, appellant's own deposition testimony supports that the county should not have known of the defect as it was impossible to see. Summary judgment is properly granted where the evidence shows: 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... 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. Civ. R. 56(C). A careful review of the affidavits and deposition testimony does not reveal any genuine issues of material fact. The facts - 5 - are that appellant was injured when his bike lodged in a crevice in a road for which the county assumes responsibility. Taking into account all the deposition testimony and affidavits there is nothing to indicate that the county was at all aware of the crevice prior to appellant's accident. Appellant does not set forth any fact which could support the argument that the county knew of the hazard. To support a cause of action for negligence, appellant had to assert that the county owed him a duty to exercise ordinary care in repairing the road, that the county was in breach of that duty, and that appellant suffered injury as a result of the breach. See, Jeffers v. Olexo (1989), 43 Ohio St. 3d 140; Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75. "Whether a duty exists depends largely on the foreseeability of the injury to one in the plaintiff's position." Jeffers v. Olexo, at 142. The "foreseeability of harm usually depends on the defendant's knowledge." Jeffers v. Olexo, at 143, quoting from Menifee v. Ohio Welding Products, Inc., at 77. Appellees' duty clearly did not extend to repairing a crevice of which appellee had no knowledge. The crevice was nearly impossible to detect. Carl Maenza, the supervisor in charge of directing road repairs, could not recollect ever noticing the crack. His road crew had worked on that section of Harvard Road, repairing chuckholes in the middle part of the roadway, earlier that spring. Maenza could not remember noticing - 6 - any defects on the side of the road. His deposition testimony was that he drove that road once a week looking for any needed repairs. He also testified that he'd never received any calls to report the need for repairs to the road due to the crevice. Appellant's deposition testimony included his description of the defect as "unseeable; at least unseeable to my human eye." (Tr. 56). Again, appellant claims, "I don't think there is any way to see it." (Tr. 62).) Without notice of the defect, appellees had no duty to appellant to repair it. No genuine issue of fact existed on this point. Under the law of negligence, summary judgment was properly granted to the appellees. Appellant's second argument under this assignment of error is that a genuine issue of fact exists as to his status as a "recreational user" of the road. Due to this court's disposition of the case under the first assignment of error and the first part of the second assignment of error, it is unnecessary to determine whether appellant was a recreational user. However, under App. R. 12(A) we will address the merits of this argument. Appellant argues that he was not a recreational user of the road as intended by R.C. 1533.181. Appellant's testimony is that he did not own a car and used his bike exclusively for transportation. However, he also testified to occasionally using the bus. - 7 - Appellees argue that appellant was out riding his bike on a sunny summer day, which makes him a recreational user of the road. The cases defining recreational users under R.C. 1533.181 find that sledding (Marrek v. Cleveland Metroparks Bd. of Commrs. (1984), 9 Ohio St. 3d 194), horseback riding (Crabtree v. Shultz (1977), 57 Ohio App. 2d 33), and a "casual, leisurely bicycle ride" through the Metroparks (Milliff v. Cleveland Metroparks System (June 4, 1987), Cuyahoga Co. App. No. 52315, unreported) constitute leisurely pursuits. The plaintiffs in those cases were found to be recreational users of the premises. Appellant's use of Harvard Road as a means of traveling from Tri-C to his home is not a recreational pursuit, in spite of it being a nice day. Appellant was tending to personal business and using his bike as a means of transportation. The Cuyahoga County Board of Commissioners can not escape liability under R.C. 1533.181 under this set of facts. However, due to our disposition of the first argument pertaining to the issue of the appellees' notice of the defect, appellant's second assignment of error is overruled. The trial court's grant of appellees' motion for summary judgment is affirmed. - 8 - It is ordered that appellees 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 Court of Common Pleas 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. DAVID T. MATIA, C.J., AND KRUPANSKY, J., CONCUR ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .