COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70271 JAMES C. HARRIS, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF STRONGSVILLE, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : DEC. 5, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 275000 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANTS: FOR DEFENDANT-APPELLEES: Gerald J. Patronite, Esq. Frederick Vergon, Esq. Gerald J. Patronite Co., Edward G. Kagels, Esq. L.P.A. 14701 Detroit Avenue, #555 34950 Chardon Road, Suite 210 Lakewood, Ohio 44107 Cleveland, Ohio 44094-9103 -2- HARPER, J.: Plaintiffs-appellants, James D. Harris, Hyeon Suk Harris, William A. Vassil and Sonja A. Vassil, appeal from the directed verdict entered in favor of defendants-appellees, the city of Strongsville ("the city") and Mayor Walter Ehrnfelt, by the Court of Common Pleas of Cuyahoga County. Appellants submit that the appellees were not governmentally immune for their alleged negligence in failing to abate known nuisances which caused damage to their respective residences. A careful review of the record compels affirmance. I. James D. Harris and Hyeon Suk Harris purchased the residence and real property located at 17072 Raccoon Trial, Strongsville, Ohio in 1992. William A. Vassil and Sonja A. Vassil purchased the residence and real property located at 18271 Fox Hollow Drive in 1982. Both streets are located in the Hunting Meadows Subdivision ("Hunting Meadows"), a subdivision developed in the 1970's. The city received multiple complaints about the streets in Hunting Meadows since the development's construction. "Action requests" for the time period of September 1990 to December 1994 reveal requests for "cut expansion, joints, cut pressure relief, cut streets ***." These types of repair meant that a four inch gap was made in the street and then filled with asphalt material to allow for the expansion and constriction of the previously poured concrete. Without the relief, the streets were subject to migration. -3- The appellants filed a complaint in the trial court on August 8, 1994. The gist of their seven claims for relief was that the city knew about the improper construction of the development's homes and streets, i.e., improper backfilling and the non-usage of joints in the originally poured streets. Appellants alleged that as a result of the appellees' failure to abate the "nuisances" despite their knowledge, the construction flaws caused structural damage to the homes' foundations and adjacent property. Appellants based a request for an injunction, as well as the city's and mayor's liability for damages and other economic losses, upon the city's Codified Ordinances, and R.C. 2744.02(B)(3), 2744.03(A) and 5715.47. After the trial court denied the appellees' motion for summary judgment, the case proceeded to jury trial on January 29, 1996. The court granted a directed verdict in the appellees' favor on February 5, 1996 following the appellants' case-in-chief. In expressing its reluctance to issue such a ruling, the court explained that any duty owed by the appellees was to the public at large, not the individual property owners. Appellants appeal this ruling and assign as error: FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED BY GRANTING A DIRECTED DEFENSE VERDICT BECAUSE DEFENDANTS ARE NOT IMMUNE FROM LIABILITY FOR FOSTERING A STREET NUISANCE WHICH DAMAGES DWELLINGS. (Judgment Entry 2/1/96, app. A) 1. Genuine Issues of Law and Fact Exist as to Whether Raccoon Trail and Fox Hollow Drive Are Abatable Nuisances Outside of Any Immunity Protection of O.R.C. 2744.02(B). -4- 2. Genuine Issues of Law and Fact Exist as to Whether Defendants Have a Duty to Prevent Streets Which They Maintain and Control from Doing Preventable and Continuing Damage to Plaintiffs' Dwellings. 3. The Trial Court Erred as a Matter of Law by Determining that Plaintiffs' Based Their Claims Upon Notions of "Design Defect", or Involved Any Facts Related to the "Public Duty Doctrine", or Found That Appellees Made Decisions Which Involved Any Significant Degree of Intelligence or Policymaking in the Context of O.R.C. 2744.02. SECOND ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED BY ARBITRARILY REVERSING RULINGS IN LIMINE WHICH WOULD ALLOW THE TRIER OF LAW OR FACT TO CONSIDER EVIDENCE OF DEFENDANTS' PRIOR KNOWLEDGE OF AND FAILURE TO ABATE A NUISANCE (FOR WHICH NO IMMUNITY IS GRANTED). As set forth by appellants in their first assignment of error, their claims against appellees focus upon the "permissive maintenance of streets which plaintiffs deem nuisances, and the ease with which the city of Strongsville and its mayor could stop all consequential damages." Appellants argue that a review of the record, with this focus highlighted, discloses the trial court's error in directing a verdict in favor of appellees as no immunity is afforded them under either R.C. Chapter 2744 or the public duty doctrine. Civ.R. 50(A) sets forth the grounds upon which a trial court may grant a motion for directed verdict. The rule provides at section (A)(4): When granted on the evidence. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in -5- favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. A motion for directed verdict is to be granted when, construing the evidence most strongly in favor of the party opposing the motion, the trial court finds that reasonable minds could come to only one conclusion, a conclusion that is adverse to such party. Civ.R. 50(A)(4); The Limited Stores, Inc. v. Pan American World Airways, Inc. (1992), 65 Ohio St.3d 66, 73. If a party opposing the motion fails to adduce any evidence on the essential elements of a claim, a directed verdict is appropriate since the issue to be determined involves a test of legal sufficiency, not questions of law. See Cooper v. Grace Baptist Church (1992), 81 Ohio App.3d 728; Hargrove v. Tanner (1990), 66 Ohio App.3d 693. The trial court herein reluctantly granted the directed verdict based upon the public duty doctrine. Appellants quote from Amborski v. City of Toledo (1990), 67 Ohio App.3d 47, 51, for the proposition that "'the intent of the statute was to codify the concept of sovereign immunity and, therefore, to abrogate the public duty/special duty theory of municipal liability.'" See, also, Colling v. Franklin Cty. Children Serv. (1993), 89 Ohio App.3d 245; Hill v. City of Urbana (Aug. 9, 1995), Champaign App. No. 94-CA-22, unreported; Boggs v. Hughes (Feb. 2, 1994), Greene App. No. 93-CA-21, unreported. -6- The Supreme Court of Ohio addressed the issue of whether the public duty doctrine survived the enactment of R.C. Chapter 2744 in Hurst v. Ohio Dept. of Rehab. and Corr. (1995), 72 Ohio St.3d 325. Hurst filed a complaint against the Ohio Department of Reha- bilitation and Correction wherein she claimed that the department's delay in processing a parole violator-at-large report led to the death of another. The Court of Claims granted summary judgment in favor of the department pursuant to the public duty rule, but the appellate court reversed the ruling based upon the rule of negligence per se. Id., 326. The Supreme Court noted its adoption of the public duty rule in Sawicki v. Ottawa Hills (1988), 37 Ohio St.3d 222. The rule provides that "when a duty which the law imposes upon a public official is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, it is generally a public and not an individual injury." Id., paragraph two of the syllabus. Recovery for negligent conduct may still be recoverable, however, if the public official's conduct falls within the special duty exception. A special duty may be indicated where the governmental entity assumes, through promises or actions, an affirmative duty to act on behalf of the injured party; the entity's agents know that inaction could lead to harm; the entity's agents and the injured party have some form of direct contact; and the injured party justifiably relies on the entity's affirmative undertaking. Id., paragraph four of the syllabus. -7- Without summarizing Hurst in its entirety, the Supreme Court concluded that the public duty rule applies when ordinary principles of negligence are involved versus negligence per se. 328-329. The court explained: The public duty rule comprises a defense independent of sovereign immunity. Sawicki, supra, 37 Ohio St.3d 222, 525 N.E.2d 468, paragraph three of the syllabus. The rule originated in English common law and survived the abrogation of sovereign immunity. Id. at 229-230, 525 N.E.2d at 476-477. It is used to determine the first element of negligence, the existence of a duty on the part of the state. If the duty owed is general in nature, the wrong created by its breach is to the public in general and, therefore, not individually actionable. Id. at 230, 525 N.E.2d at 477, citing 2 Cooley, Law of Torts (4 Ed. 1932) 385-396, Section 300. Id., 329. In the within case, the trial court did not outright err in considering the public duty rule to essentially bar the appellants' claims against the city and its mayor. Despite certain appellate courts' declarations that R.C. Chapter 2744 abrogated the public duty rule, the rule is still viable in light of Hurst. Notwithstanding this conclusion, appellants do not argue on appeal that the appellees' alleged negligent acts/failures to act violated a duty owed to them as individual landowners. Appellants also fail to comment upon whether the appellees' actions/failures to act fall within the special duty exception of Sawicki. This court consequently only focuses upon the appellants' essential claim that the appellees owed a duty to every homeowner under R.C. Chapter 2744 "to assure that the streets were not a nuisance for want of repair." (Emphasis sic.) A reviewing court need only find that a -8- judgment was correct regardless of the reasons stated by the trial court. See Joyce v. General Motors Corp. (1990), 49 Ohio St.3d 93. A political subdivision is generally not liable for damages for injury, death, or loss to persons or property incurred in connection with the performance of either a governmental or proprietary function. R.C. 2744.02(A)(1). There are several exceptions, however, to this grant of sovereign immunity. See, generally, R.C. 2744.02(B). The subsection which is relevant to this appeal, R.C. 2744.02(B)(3), charges political subdivisions with liability for injury to property caused "by their failure to keep public roads, highways, [and] streets *** within the political subdivisions open, in repair, and free from nuisance ***." (Emphasis added.) The Supreme Court of Ohio first addressed a political subdivision's duty to keep roads free from nuisances in Manufacturer's Natl. Bank of Detroit v. Erie Cty. Road Comm. (1992), 63 Ohio St.3d 318, by referencing case law that stemmed 1 from R.C. 732.01. The court held that a permanent obstruction to visibility in the right-of-way which renders the regularly 1 R.C. 723.01 reads as follows: Municipal corporations shall have special power to regulate the use of the streets. Except as provided on section 5501.49 of the Revised Code, the legislative authority of a municipal corporation shall have the care, supervision, and control of the public highways, streets, avenues, alleys, sidewalks, public grounds, aqueducts, and viaducts within the municipal corporation, and the municipal corporation shall cause them to be kept open, in repair, and free from nuisance. -9- travelled portions of the highway unsafe for the usual and ordinary course of travel can be a nuisance which imposes liability on a political subdivision under R.C. 2744.02(B)(3). Id., paragraph one of the syllabus. See Franks v. Lopez (1994), 69 Ohio St.3d 345; Valescu v. Cleveland Metroparks Sys. (1993), 90 Ohio App.3d 516. It is thus apparent that in determining a political subdivision's liability for a nuisance, the focus is "on whether a condition exists within the subdivision's control that creates a danger for ordinary traffic on the regularly travelled portion of the road." Manufacturer's Natl. Bank, 322. See Valescu; Palko v. Elyria (1993), 86 Ohio App.3d 211; Weber v. Condren (Sept. 21, 1995), Cuyahoga App. No. 68268, unreported [check history]. In Shank v. City of Springfield (May 3, 1995), Clark App. No. 94-CA-71, unreported, the plaintiffs were the owners of residences and real property which faced Columbus Avenue. The city commenced construction work on Columbus Avenue in 1991 that included road improvements and repair, installation of a curb and gutter system, and construction of driveway aprons on the plaintiffs' property. The plaintiffs partially complained that the resultant change in the grade of the road caused a water drainage problem that, in turn, created a nuisance of "'ponding'" and "'puddling'" not only on the private property, but the public sidewalk as well. After the trial court granted summary judgment in favor of the city, the plaintiffs/appellants submitted on appeal that the trial court erroneously characterized their complaints as "private" versus "public." They thus argued that the city was liable under -10- R.C. 2744.02(B)(3) for failing to keep its public sidewalks free from nuisance. The Court of Appeals for Clark County, prior to analyzing the applicable law, accepted most of the appellants' averments as true. Specifically, the court agreed that (1) an unpaved, undedicated, pedestrian right-of-way existed in the front of the private property at issue; (2) the road construction work caused water to pond and puddle on the property, specifically in the area of a right-of-way; and (3) the collection of water constituted a nuisance. The court proceeded to recognize that R.C. 2744.02(B)(3) imposes a duty upon a political subdivision to keep a right-of-way free from nuisance. "[B]ut it is clear that this duty only exists to the extent that the condition on the right-of-way creates a nuisance on the adjacent street or sidewalk that renders ordinary travel thereupon unsafe." Shank, citing Manufacturer's Natl. Bank; Dickerhoof v. City of Canton (1983), 6 Ohio St.3d 128; and Palko. The issue to be decided upon appeal was whether "an unimproved portion of a right-of-way falls within the definition of a 'sidewalk' as a public area that a political subdivision has an obligation to keep free from nuisance ***." Since sidewalks are intended for the use of pedestrians, R.C. 4511.01(FF), but there was no indication that the unpaved, undedicated portion of the appellants' private property was intended for such usage, the right-of-way did not fall within the immunity exception of R.C. 2744.02(B)(3). The city of Springfield was, therefore, not -11- responsible for keeping the non-public area in repair and free from nuisance. Applying the same type of analysis to the case at bar, appellants do not maintain that the improper backfilling and/or migrating streets in the subdivision of Hunting Meadows created a nuisance on the streets themselves. Without this assertion, appellees have no duty under R.C. 2744.02(B)(3) since there is no indication that travel on the roadways is unsafe. Compare, Shank (assumption of duty under R.C. 2744.02(B)(3) where appellants claimed that the city's constructed driveway aprons created a nuisance on the roadway for incoming and departing motorists). Appellants thus erroneously rely on Franks and Hechart v. Patrick (1989), 15 Ohio St.3d 402, and any other case dealing with obstruction on roadways. We recognized in Weber that the core of these types of cases is the safety of traffic on the roadways when we stated, "it is the traffic on the road which is at the heart of the liability imposed by R.C. 2744.02 (B)(3)." Appellants place abundant emphasis on the damages allegedly caused to their property by the city's actions/failures to act, but do so without overcoming the essential legal issue, i.e., the appellees' amenability to suit. The appellees' failure to abate a so-called nuisance, the migrating streets in particular, did not create a danger for traffic on the road. Appellants are no doubt totally disheartened by the damages to their property, and frustrated with their failed efforts. However, reasonable minds can come to but one conclusion that R.C. 2744.02(B)(3) was not -12- implicated under the facts of this case. Since the appellees' liability for these damages cannot be founded in R.C. Chapter 2744, the trial court properly granted the directed verdict in favor of 2 appellees. Civ.R. 50(A)(4); The Limited Stores, Inc. Appellants' first assignment of error is overruled. Appellants' second assignment of error concerns rulings made by the trial court on evidentiary matters. This court is under no obligation to review this assignment because the appellants fail to present an accompanying argument in their brief. Errors not addressed in an appellate brief are deemed abandoned for purposes of appeal. See App.R. 12(A), 16(A); Hawley v. Ritley (1988), 35 Ohio St.3d 157. Appellants' second assignment of error is overruled. Judgment affirmed. 2 In light of this conclusion, appellants' references to R.C. 2744.03(A)(3), (5) and (6) are inconsequential since a duty must first be found under R.C. 2744.02 before the invocation of the defenses and immunities of R.C. 2744.03. -13- It is ordered that appellees 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 Cuyahoga County 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, C.J., AND DAVID T. MATIA, J., CONCUR JUDGE SARA J. HARPER N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .