COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68132 SHELLIE MARKLEY : : ACCELERATED Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION STEVE TANCAK : : PER CURIAM Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 6, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 261363 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: BRUCE D. TAUBMAN, ESQ. JAMES L. GLOWACKI, ESQ. 55 Public Square JOHN S. WOLANIN, ESQ. Cleveland, Ohio 44113 510 Leader Building Cleveland, Ohio 44114 - 2 - PER CURIAM: Appellant filed her complaint on November 18, 1993, alleging that appellee negligently maintained the gutters on his rental property, which negligence proximately caused appellant to slip and fall on an icy walkway and injure herself. Appellee filed a motion for summary judgment supported by the depositions of both appellee and appellant. Appellant responded to the motion with a brief in opposition to the motion for summary judgment, without any supporting affidavits. The trial court granted appellee's motion on October 17, 1994. Appellant appeals from the summary judgment in favor of appellee, asserting one assignment of error. I THE TRIAL COURT ERRED IN GRANTING APPELLEE'S CIV.R. 56(B) MOTION FOR SUMMARY JUDGMENT. Appellant argues that a genuine issue of material fact exists as to whether or not appellee knew or should have known of the hazardous condition created by the overflowing downspout. After a thorough review of the supporting evidence in the record, we do not find that a genuine issue of material fact exists and furthermore, we find that appellee is entitled to judgment as a matter of law. The deposition testimony of appellee indicated that he had never been notified that there was ever a problem with the downspout on the west side of the property. Appellee knew of the problem on the east side of the property and took steps to install a larger downspout. Appellee stated that the only time he had ever - 3 - received a complaint from the tenants on that side of the building was when their sink backed up. Appellant never testified in her deposition to any set of facts from which one could infer that appellee had notice of a problem with his gutters or downspout where appellant fell. The only significant testimony adduced at the deposition was that the size of the icy "splotch" was approximately four inches in diameter. A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media (1991), 59 Ohio St.3d 108, 111, quoting Celotex v. Catrett (1986), 477 U.S. 317, 322-23. No supporting documents were attached to appellant's brief in opposition to appellee's motion for summary judgment, leaving this Court to review only the pleadings and the depositions attached to appellee's brief in support of his motion. After reviewing the record in a light most favorable to appellant, it is clear that no genuine issue of material fact existed and that appellee is entitled to judgment as a matter of law. Civ.R. 56(C). Appellant did not meet her burden to produce evidence as to appellee's knowledge of the icy condition of the walkway. Given that the icy spot was so small, we can not assume that appellee should have known about it. The law in Ohio requires a showing that the lessor had notice or at least that the lessee attempted to notify the lessor - 4 - regarding the defective condition. Shroades v. Rental Homes, Inc. (1981), 68 Ohio St.2d 20; Winston Properties v. Sanders (1989), 57 Ohio App.3d 28. Appellant's assignment of error is overruled. The trial court's decision to grant appellee's motion for summary judgment is affirmed. - 5 - 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. _________________________________ LEO M. SPELLACY, PRESIDING JUDGE _________________________________ DAVID T. MATIA, JUDGE _________________________________ 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 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. .