COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68016 : BRIAN EDMONDS : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : CORPORATE SERVICES MANAGEMENT : ESTATES, ET AL. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT NOVEMBER 2, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 261325 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees Corporate Services, Et Al.: CHRISTOPHER FORTUNATO, ESQ. Papandreas, Fahrer & Corso JOHN T. HANNA, ESQ. 706 Citizens Building JOHN T. McLANDRICH, ESQ. 850 Euclid Avenue Mazanec, Raskin & Ryder Co. Cleveland, Ohio 44114 100 Franklin's Row 34305 Solon Road For Defendant-Appellee Cleveland, Ohio 44139 City of Cleveland: TIMOTHY MELENA, ESQ. TRACI M. HIXSON, ESQ. City Hall, Room 106 -2- Cleveland, Ohio 44114 -3- O'DONNELL, J.: Brian Edmonds appeals from the decision of the trial court granting summary judgment in favor of Charles Najm, Najm Real Estate, Inc., and the city of Cleveland. On the afternoon of July 13, 1993 at approximately 4:30 p.m., Brian Edmonds was walking on a public sidewalk on Rocky River Drive in the city of Cleveland. As he walked in front of the property at 4123 Rocky River Drive, he tripped on a crack in the sidewalk and fell to the ground. As a result of his fall, Edmonds sustained injuries to his right ankle, wrist, and elbow. The crack, which was more than two inches in depth, was created by a tree root from the tree lawn that lifted the sidewalk. Charles Najm was the owner of the property located at 4123 Rocky River Drive and the owner of Najm Real Estate, Inc., which manages the property. Najm did not maintain the sidewalk and did not receive notice of the hazardous condition of the sidewalk abutting his property prior to July 13, 1993. Najm first learned of the condition of the sidewalk when Edmonds contacted him and complained. Najm told Edmonds he was working with the city of Cleveland to get the sidewalk repaired. Michael E. Cox, Superintendent of the Bureau of Sidewalks for the city of Cleveland, searched the records of the Bureau of Sidewalks for a period of five years prior to July 13, 1993. He did not find any record of a complaint, nor did he find any notice of defect or repair permit for the sidewalk at or near 4123 Rocky River Drive. -4- William Breitenbach, Field Operations Forester for the Urban Forestry Section of the Department of Parks of the city of Cleveland, searched the records of the Urban Forestry section for a period of five years prior to July 13, 1993. He did not find any record of a complaint, nor did he find any notice of the condition of the tree located in the tree lawn in front of the property at 4123 Rocky River Drive. Edmonds filed an action against Corporate Services Management Estates, Najm, Najm Real Estate, Inc., and the city of Cleveland for negligence. After discovery was completed, Corporate Services Management Estates was voluntarily dismissed as a defendant. Najm, Najm Real Estate, Inc., and Cleveland moved for summary judgment and the motions were granted. Edmonds now appeals and assigns the following error for our review: THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT BELOW, PURSUANT TO CIV.R. 56, WHEN THE APPELLEE HAD DEMONSTRATED GENUINE ISSUES OF MATERIAL FACTS. Edmonds argues there was a genuine issue of fact because Najm and the city of Cleveland had notice of the defect in the sidewalk. Najm, however, asserts he had no duty to maintain the sidewalk as the owner of the abutting property. The city of Cleveland argues it did not have notice of the defective sidewalk prior to July 13, 1993 when Edmonds fell. Thus, the issue for our review is whether Edmonds presented a prima facie case of negligence which would preclude summary judgment in favor of Najm, Najm Real Estate, and the city of Cleveland. -5- The standard of review for an appeal from summary judgment is set forth in Civ.R. 56, and we evaluate the record according to Civ.R. 56. Civ.R. 56 specifically provides 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 party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Moreover, it is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmovant. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. Under Civ.R. 56(E) "a nonmovant may not rest upon the mere allegations or denials of his pleadings but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. The issue of whether Edmonds established a prima facie case against Najm and Najm Real Estate involves duty of care. In order to establish a prima facie case of negligence, a plaintiff must show the existence of a duty and breach of that duty. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. "As a -6- matter of law, property owners owe no duty to those on a public sidewalk unless 'defects are created or negligently maintained or permitted to exist by such owner for his own private use or benefit.'" Masek v. Voll (May 13, 1993), Cuyahoga App. No. 62049, quoting Eichorn v. Lustig's, Inc. (1954), 161 Ohio St. 11 at the syllabus. Furthermore, this court has consistently held, where a pedestrian falls on a defective public sidewalk, the owner of the abutting land has no duty of care and is entitled to judgment as a matter of law. E.g. Masek, Simon v. Kredo Hardware (Nov. 15, 1990), Cuyahoga App. No. 59561, unreported; MacCutcheon v. Kidman (Aug. 18, 1994), Cuyahoga App. No.66117, unreported. In this case, Edmonds failed to produce evidence that Najm or Najm Real Estate created, negligently maintained, or permitted the defect to exist for their own private use. Absent such evidence, Najm and Najm Real Estate did not owe a duty of care, and Edmonds could not establish a prima facie case of negligence. Therefore, the trial court properly granted summary judgment in favor of Najm and Najm Real Estate. The issue of whether Edmonds established a prima facie case against the city of Cleveland involves the public duty rule under R.C. 723.01. R.C. 723.01 imposes a duty on a municipal corporation to keep its streets, sidewalks, and public grounds "open, in repair, and free from nuisance." Hamila v. Cleveland (1993), 91 Ohio App.3d 618 at 620, citing Ruwe v. Bd. of Springfield Twp. Trustees (1987), 29 Ohio St.3d 59. "Liability for damages for failure to perform such duty cannot arise except upon proof either -7- that its agents or officers actually created the faulty condition from which injury resulted or that it had notice thereof, actual or constructive." Id. at 620-621. In his affidavit, Edmonds stated that "in conversations with Charles Najm subsequent to my injury, Najm had stated that he was working with the city of Cleveland to repair the sidewalk and obstructing tree root." While this affidavit established that the city of Cleveland learned of the defect in the sidewalk, the statement does not indicate when they learned of the defect, and does not establish notice. Therefore, Edmonds did not establish a prima facie case of negligence under the public duty rule, and the trial court properly granted summary judgment in favor of the city of Cleveland. Accordingly, the judgment of the trial court is affirmed. -8- It is ordered that Appellees recover of Appellant their 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, P.J., and KARPINSKI, J., CONCUR. TERRENCE O'DONNELL 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 journaliza- .