COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70214 JANET BLASIUS, ET AL. : : ACCELERATED CASE Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION CUYAHOGA COUNTY COMMISSIONERS,: ET AL. : PER CURIAM : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: JUNE 13, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-284138 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: CLEMENT KOLLIN (#0000010) 4053 East 71st Street Cleveland, Ohio 44105 For Defendant-Appellee, R.P. Carbone Const. Co.: ROBERTO H. RODRIGUEZ, JR. (#0031319) HAROLD H. READER (#0021911) ULMER & BERNE P.L.L. 1300 East Ninth Street, Suite 900 Cleveland, Ohio 44114-1583 - 2 - PER CURIAM: Plaintiffs-appellants Janet and Sebastian Blasius ("appellants") appeal the grant of summary judgment in favor of defendant-appellee R.P. Carbone Construction Company ("Carbone"). Appellants sought to recover for injuries received by Janet Blasius when she tripped and fell on the walkway leading into the Justice Center. Appellants assign the following errors for review: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT, R.P. CARBONE CONSTRUCTION CO.'S MOTION FOR SUMMARY JUDGMENT. II. THE TRIAL COURT ERRED IN STATING THAT DEFEN- DANT, R.P. CARBONE CONSTRUCTION CO., DID NOT OWN, MAINTAIN OR CONTROL THE PROPERTY WHERE PLAINTIFF FELL THEREFORE THEY OWED NO DUTY TO THE PLAINTIFF FOR IN REALITY THEY DID CONTROL THE AREA WHERE PLAINTIFF FELL FOR THE BRICK WALKWAY BRICKS HAD TO BE REPLACED. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On February 1, 1995, appellants filed a complaint against the Cuyahoga County Commissioners, the Board of County Commissioners, the City of Cleveland, R.P. Carbone Construction Company, and various John Doe defendants. Appellants alleged Janet Blasius suffered severe injuries when, on February 3, 1993, she tripped because of missing bricks in the walkway of the Justice Center. Appellants averred Carbone was hired by the County Commissioners to do repair work at the Justice Center which included the walkway on - 3 - which Janet Blasius was injured. Appellants alleged Carbone failed to secure and/or warn frequenters of the dangerous condition of the walkway and Janet Blasius was injured as a result of this negligence. Carbone filed a motion for summary judgment in which it argued it did not occupy or control the area in which Janet Blasius fell and owed her no duty of care. Carbone was renovating or repairing the area on the Lakeside Avenue side of the Justice Center at the time Janet Blasius was injured. Therefore, she was not injured in an area occupied by Carbone. The trial court granted Carbone's motion for summary judgment. The case was called for trial on January 29, 1996. When no one appeared, the trial court dismissed the case without prejudice. II. Appellants' assignments of error will be addressed together as both are interrelated. Appellants argue the trial court erred in granting Carbone's motion for summary judgment because Carbone should have secured the premises by cordoning off unsafe areas of the walkway. This case was decided by summary judgment. Civ.R. 56(C) provides that summary judgment is proper 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 - 4 - 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. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reason- able dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. The moving party is entitled to summary judgment if the nonmoving party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 322. Appellants argue Carbone did have control over the area in which Janet Blasius fell as Carbone had a contract with the Cuyahoga County Commissioners to repair or replace the brick walkway and to take reasonable safeguards for the safety and protection of the public. Appellants assert Carbone had knowledge of the defective condition of the walkway as Carbone inspected the walkway prior to submitting its bid on the project. In order to recover on a theory of premises liability, it is necessary to prove ownership or control of the premises. A "possessor" is a person who occupies the land with the intent to control it. Possession and control are two required elements of - 5 - premises liability. Monnin v. Fifth Third Bank of Miami Valley, N.A. (1995), 103 Ohio App.3d 213. Control implies the power and the right to admit people to the premises and to exclude people from it, and involves a substantial exercise of that right and power. Mitchell v. Cleveland Elec. Illum. Co. (1987), 30 Ohio St.3d 92, 94. The quantum of control necessary for premises liability is one that is physical and actual, and not one that is merely legal or theoretical. The ability of the entity in control of the property to protect property or people from foreseeable harm triggers the duty. "Liability is an incident of occupation or control of the premises." Beaney v. Carlson (1963), 174 Ohio St. 409, 411. Monnin, supra at 222. One without occupation or control of the premises has no legal duty to another with respect to the condition or use of those premises. See Evans v. Whirlpool Corp. (1966), 6 Ohio App.2d 211. Carbone argues it had no control over the area in which Janet Blasius fell as, at the time, it was working on the Lakeside Avenue area of the Justice Center. Carbone was required by its contract to conduct the project in distinct phases in order to maintain the Justice Center as a functioning facility. Work was conducted on the Lakeside Plaza and lawn area from August, 1992, until November of 1993. Janet Blasius was injured on February 3, 1993. Appellants' position is that Carbone had a duty to take all safety precautions necessary to the performance of its contract. It had a duty to cordon off and secure dangerous areas. However, - 6 - the record reflects Carbone was not working in the area in which Janet Blasius fell at the time the injury occurred. The only area under Carbone's control was that in which restoration and repair was taking place along Lakeside Avenue. There is no duty to protect persons from harm in premises not under the possession and control of the entity or person. Simpson v. Big Bear Stores Co. (1995), 73 Ohio St.3d 130. Carbone had no duty to repair or replace bricks in the walkway before it began working on that phase of the project. Carbone owed Janet Blasius no duty of care to protect her from harm on premises which were not under Carbone's control. Appellants' first and second assignments of error are overruled. Judgment affirmed. - 7 - This cause is affirmed. 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 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, CHIEF JUSTICE DAVID T. MATIA, JUDGE JOSEPH J. NAHRA, 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 .