COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68169 : WILFRED A. JACKSON, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION : CITY OF SOUTH EUCLID : : Defendant-Appellee : : DATE OF ANNOUNCEMENT SEPTEMBER 28, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 248920 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFFS-APPELLANTS: FOR DEFENDANT-APPELLEE: BARRY KING, ESQ. VINCENT A. FEUDO, ESQ. 425 Marion Building 1100 Illuminating Building 1276 West Third Street 55 Public Square Cleveland, Ohio 44113-1512 Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, J.: Wilfred A. Jackson and Florence W. Jackson, plaintiffs- appellants, appeal the trial court's granting of summary judgment in favor of the city of South Euclid, defendant-appellee. They assign the following error for our review: THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHERE GENUINE ISSUES OF MATERIAL FACT EXIST. Having reviewed the record of the proceedings and the arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On the afternoon of Wednesday, October 23, 1991, Wilfred Jackson was raking leaves at the home of his daughter, Hazel E. Jackson, at 1539 Holmden Road, South Euclid, Ohio. As he gathered leaves to bag them on the strip of lawn between the sidewalk and the curb, he stepped back with his right foot, and the ground beneath his right foot collapsed into a hole deeper than the length of his leg. With all of the weight of his body on his left leg, his left knee shattered, and his right leg and rest of his body plunged into the hole. Two neighbors helped him out of the hole and he was taken by ambulance to the Cleveland Clinic for treatment. The next morning after Jackson fell into the hole, two men employed by the city of South Euclid went to the home to repair the hole. The workmen excavated the area and found a leaking pipe two feet below the surface. One of the men informed Florence Jackson, Wilfred Jackson's wife, they found an unsealed pipe coming from the -3- curb drain. He further stated the pipe was not properly sealed and the continuous leaking caused the erosion underneath the surface. The two men sealed the pipe with cement, filled the hole with cement and gravel, and covered it with a loose grass covering. Prior to the accident, the city of South Euclid had performed sanitary sewer repair work on the front of substantially every residential property on Holmden Road. In August 1989, South Euclid reconstructed and resurfaced the entire sidewalk and apron in front of 1539 Holmden Road. South Euclid employed Stephen Hovancsek as city engineer on an independent consultant basis. Hovancsek was responsible for sewer systems and drainage. He explained that Holmden Road was serviced by sanitary sewers, storm sewers, and curb drains. The sanitary sewers service the drains from inside of the houses and are placed six to eight feet below the ground surface. The storm sewers serviced the footers, gutters, and downspouts and are placed five feet below the ground surface. Storm sewers are separate from sanitary sewers. Curb drains consist of four inch pipe placed 18 to 24 inches below the curb, run parallel with the street, and drain excess water from the road. Water moves from curb drains to catch basins and into the main storm sewer. Hovancsek stated a malfunctioning curb drain cannot be detected, without digging up the line, unless it makes a visible surface depression. He also stated there was no evidence of a pattern or history indicating a city-wide problem with curb drains. -4- Wilfred and Florence Jackson filed an action against the city of South Euclid alleging the city negligently maintained and created a nuisance. South Euclid moved for summary judgment, the motion was granted, and this appeal followed. The standard of review for an appeal from summary judgment is plenary. This court applies the same test as the trial court, which 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. -5- Summary judgment in this case involves nuisance 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 that its agents or officers actually created the faulty condition from which injury resulted or that it had notice thereof, actual or construc- tive." Id. at 620-621. In order to charge a municipality with constructive notice of a nuisance, it must appear that such nuisance existed for a sufficient length of time to have been discovered, and that if it had been discovered, it would have created a reasonable apprehension of a potential danger. E.g. Miller v. Cleveland (Sept. 12, 1991), Cuyahoga App. No. 59258, unreported. The issue in this case is whether South Euclid had constructive knowledge of the nuisance created by the leaking curb drain. The Jacksons argue the city had constructive knowledge because of the problem throughout the city. They provided messages received by the city of South Euclid to show other storm sewers were leaking and causing depressions on driveway aprons and lawns in the area. While this evidence demonstrates a problem at other addresses in South Euclid, it does not demonstrate a problem existed at 1539 Holmden. There was no depression on the property at 1539 Holmden and South Euclid was not under a duty to dig up and -6- inspect every curb drain, catch basin, and storm sewer. See Austin v. Cleveland (Feb. 2, 1995), Cuyahoga App. No. 66575, unreported (held city had no duty, under R.C. 2744.02(A)(1), to inspect the brickwork inside of a sewer basin). Furthermore, the Jacksons also argue constructive knowledge because a city employee told Florence Jackson that a previous worker did not properly seal the leaking pipe. However, there is no evidence as to when or where the alleged previous work took place and by whom; the city records do not demonstrate storm sewer work was done on Holmden in the ten years prior to Wilfred Jackson's accident. Repair work was performed on the sanitary sewer system, but that is a separate system from the storm system, and there is no evidence such work involved the curb drain or would have alerted South Euclid of a problem with the curb drain. In 1989, the apron and sidewalk at 1539 Holmden was replaced, but there is no indication this work involved the curb drain or would have alerted South Euclid of a problem with the curb drain. Accordingly, the Jacksons failed to present sufficient evidence that South Euclid had constructive notice of the defective pipe in the curb drain, and therefore, summary judgment was properly granted. Judgment affirmed. -7- It is ordered that Appellee recover of Appellants 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. SPELLACY, P.J., and KARPINSKI, J., CONCUR. PATRICIA ANN BLACKMON 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- .