COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68133 RICHARD JACKSON, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF CLEVELAND, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: JULY 13, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 253343 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: JEFFREY D. LOJEWSKI, ESQ. SHARON SOBOL JORDAN, ESQ. ROBERT W. TODT, ESQ. Cleveland City Director of Law BERGER & KIRSCHENBAUM CO., L.P.A. MICHAEL A. DOLAN, ESQ. 1919 East 13th Street Room 106 - City Hall Cleveland, Ohio 44114 601 Lakeside Avenue Cleveland, Ohio 44114 - 2 - DYKE, J.: Appellant and his wife were walking through Highland Park Cemetery on January 17, 1993 when appellant fell into a depression in the earth. The depression was approximately three feet wide by three feet long and several feet deep. The depression was not visible due to a covering of snow. Appellant filed this action against the City of Cleveland as the proprietor of the cemetery and the Highland Park Cemetery for negligence in failing to inspect and maintain the cemetery in a reasonably safe condition. Appellant also claimed that appellees were negligent in failing to warn appellant about the defective and dangerous condition. Appellant filed a loss of consortium claim within the complaint as well. Appellees filed a motion for summary judgment on May 27, 1994. They conceded that appellants were business invitees on the cemetary premises on the day in question. Appellees asserted that they are unable to predict when the earth will form a depression, as it naturally does with the settling of the soil and the deterioration of the vaults over time. William Drobnik is the Cemetery Supervisor at Highland Park. He personally inspects the cemetery for depressions and defects on a daily basis, although the particular section where appellant claimed to have fallen had not been inspected since October 1992, three months before the incident. Appellees attached to their motion for summary judgment the depositions of Richard Jackson, William Drobnik, Charles Harrison and Frank Coreno. - 3 - Appellants filed their brief in opposition to appellees' motion for summary judgment on June 20, 1994. They attached the affidavit of Mrs. Jackson, the depositions of Frank Coreno, William Drobnik and Charles Harrison and the appellees' answers to interrogatories. Appellants asserted in opposition to the motion that a question of fact remained as to whether or not appellees had failed to reasonably inspect the area and whether they knew of the dangerous defect or not. The trial court granted appellees' motion for summary judgment on October 13, 1994. Appellants appeal from the court's ruling and assert one assignment of error. I THE TRIAL COURT ERRED IN GRANTING DEFENDANTS-APPELLEES' MOTION FOR SUMMARY JUDGMENT WHEN REASONABLE MINDS COULD REACH DIFFERENT CONCLUSIONS AS TO WHETHER THE APPELLEES HAD KNOWLEDGE OF THE DEPRESSION OR EXCAVATION WHICH CAUSED THE APPELLANTS' INJURIES. Appellants argue that they were business invitees at the cemetery, entitled to a premises made safe through the ordinary and reasonable care of appellees. Appellants claim that appellees knew of the depression or should have known of it given the length of time it must have existed. Therefore, a question of fact remained as to whether reasonable care was exercised, according to appellants' argument. This argument is not well taken. Appellees' deposition testimony indicated that the depressions occurred naturally due to soil settling and the deterioration of the vaults. There was no evidence presented by appellant to prove - 4 - that this depression had existed for any length of time. As a matter of fact, Mrs. Jackson's affidavit testimony was that the depression was snow covered and not apparent prior to her husband's fall. Appellant's own deposition testimony indicated that the depression was not visible to him prior to his fall. Yet appellants claim that the managers of the cemetery should have known about this invisible depression and warned them of it. Appellant never presented evidence in deposition or affidavit form of any set of facts from which one could infer that appellees had notice of the defect. The only significant testimony adduced was that the last inspection occurred in October, three months before appellant's fall. This does not go to prove that the depression existed for that length of time, nor for any length of time. Appellees produced evidence that they were taking reasonable steps to make the premises safe by sending the supervisor on daily inspections through parts of the cemetery looking for defects and depressions. 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. To support a claim of negligence, appellants would have to prove that appellees knew or should have known of the existence of the defect. See Baldauf v. Kent State Univ. (1988), 49 Ohio App.3d 46. The Ohio Supreme Court has held that: - 5 - Although the owner or operator owes this duty of ordinary care, "the liability of an owner or occupant to an invitee for negligence in failing to render the premises reasonably safe for the invitee, or in failing to warn him of dangers thereon, must be predicated upon a superior knowledge concerning the dangers of the premises to persons going thereon." 38 American Jurisprudence, 757, Negligence, Section 97. We again point out the proposition relied upon by Judge Hart in Englehardt v. Philipps, 136 Ohio St. 73, 78, "* * * that it is the defendant's superior knowledge of existing dangers or perils to persons going upon the property which is the basis of liability." Thompson v. Ohio Fuel Gas Co., 9 Ohio St. 2d 116, 120. Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38, 40. After reviewing the record in a light most favorable to appellants, it is clear that no genuine issue of material fact existed and that appellees are entitled to judgment as a matter of law. Civ.R. 56(C). Appellants did not meet their burden to produce evidence as to appellees' knowledge of the defect in the cemetery grounds. Without any evidence that the defect was visible or had been there any length of time, we can not assume that appellees should have known about it. Appellants' assignment of error is overruled. The trial court's ruling which granted summary judgment to appellees is affirmed. - 6 - It is ordered that appellees recover of appellants 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 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. JAMES D. SWEENEY, P.J., AND O'DONNELL, 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 journalization, .