COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69212 LEWIS G. ROBINSON : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF SHAKER HEIGHTS, : ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 7, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-274506 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee City of Shaker Heights: LEWIS G. ROBINSON, ESQ., PRO SE SHERYL KING BENFORD, ESQ. 3646 Hildana Road Shaker Heights Law Director Shaker Heights, Ohio 44120 3400 Lee Road Shaker Heights, Ohio 44120 For Defendant-Appellee City of Cleveland: For Defendant-Appellee Willard Construction Co.: FARRUQ JAFERY, ESQ. Room 106 City Hall JOHN F. BURKE, III, ESQ. 601 Lakeside Avenue MANSOUR, GAVIN, GERLACK Cleveland, Ohio 44114 & MANOS CO., L.P.A. 55 Public Square, Suite 2150 Cleveland, Ohio 44113-1994 - 2 - DYKE, J.: Appellant brought a lawsuit sounding in negligence against the City of Shaker Heights ("Shaker Heights") and Willard Construction Company ("Willard") on July 29, 1994. Appellant claimed that Shaker Heights and the construction company had breached their duty toward the users of the city sidewalks by leaving a pipe exposed. Appellant tripped over this pipe and suffered injury on September 25, 1993. Willard filed a motion for summary judgment on March 21, 1995. Shaker Heights followed suit and filed its own motion for summary judgment on May 4, 1995. On June 6, 1995, the trial court granted both motions. Appellant filed his timely notice of appeal from the trial court's decision asserting essentially one assignment of error. Cross-claims were filed between Willard, Shaker Heights and the City of Cleveland. These claims were premised upon liability which would arise only if Shaker Heights or Willard were found to be negligent. Because the trial court granted summary judgment motions for each of the defendants, the cross-claims were rendered moot. The June 6, 1995 judgment granting the summary judgment motions is a final appealable order pursuant to Civ.R. 54(B) where the claims not specifically adjudicated are rendered moot by the court's determination. See, Noll v. American Tel. & Tel. Co. (1989), 63 Ohio App.3d 646 and Ford Motor Credit Co. v. Landmark (1983), 12 Ohio App.3d 117. - 3 - I THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTIONS FOR SUMMARY JUDGMENT. A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER THE APPELLEES BREACHED A DUTY TO THOSE USING THE SIDEWALK ON SCOTTSDALE BOULEVARD. Appellant asserts numerous assignments of error which are interrelated and essentially present one argument. Appellant asserts that a genuine issue of fact existed as to whether the appellees' failure to provide safe walkways was a proximate cause of his injury. Appellant's argument is not well taken. To bring a negligence action it is necessary to demonstrate the existence of a duty, a breach of that duty and an injury proximately caused by the breach. Jeffers v. Olexo (1989), 43 Ohio St.3d 140. Appellant bore the burden of producing evidence to support these elements once the appellees filed their motions for summary judgment. 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. Celotex v. Catrett (1986), 477 U.S. 317, 322-323. See, also, Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 114, 526 N.E. 2d 798, 800-801. Wing v. Anchor Media (1991), 59 Ohio St.3d 108, 111. * * * When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Civ.R. 56(E) and Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 65. - 4 - Appellant alleged negligence on the part of Shaker Heights and Willard because he tripped over an exposed pipe, resting in a bed of gravel and traveling across the sidewalk where he was walking. This mere allegation of negligence was not supported after the filing of appellees' motions for summary judgment with evidence to demonstrate that the leaving of a pipe running across the sidewalk constituted a breach of a duty. Neither did appellant demonstrate through any evidence that the physical complaints he experienced in the four months following the trip and fall were proximately caused by the fall. The only document offered with appellant's brief in opposition to appellees' motions for summary judgment was an affidavit in which appellant averred that he thought the gravel appeared solid. This was insufficient to demonstrate either a breach of Shaker Heights' or Willard's duty to keep the sidewalk safe. Nor does the affidavit demonstrate that his injury was proximately caused by such a breach. Summary judgment is proper, pursuant to Civ.R. 56(C) if the trial court determines 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 conclu- sion 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, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; see, also Delker - 5 - v. Ohio Edison Co. (1989), 47 Ohio App.3d 1, 2, 546 N.E.2d 975, 976. Manofsky v. Goodyear Tire & Rubber Co. (1990), 69 Ohio App.3d 663, 666, motion to certify overruled (1991), 58 Ohio St.3d 703. We find that appellant has failed to demonstrate a triable issue of fact, that appellees are entitled to judgment as a matter of law and that reasonable minds could come to but one conclusion, viewing the evidence in a light most favorable to appellant. Appellees' motions for summary judgment were properly granted by the trial court. Appellant also claims that the trial court's decision to grant appellees' motions for summary judgment denied him due process and equal protection. However, this assertion is not argued within the brief and we are not at liberty to review errors not properly presented to this Court. See Sweet Temptations v. North Coast Cookies (1984), 16 Ohio App.3d 342. Appellant's arguments are not well taken and the assignment of error is overruled. The trial court's decision to grant both motions for summary judgment is affirmed. - 6 - 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 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 PORTER, 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, .