COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70438 : ACCELERATED DOCKET ROBERT PAUL, ET AL. : : : JOURNAL ENTRY Plaintiffs-Appellants : : and v. : : OPINION ANGELO V. SEMIRALE, JR., ET AL. : : : PER CURIAM Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 5, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-238603 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: MICHAEL J. CATICCHIO, ESQ. GLENN D. SOUTHWORTH, ESQ. ZIMMERMAN, CATICCHIO & EISENBERG WESTON, HURD, PAISLEY & HOWLEY 5001 Mayfield Road, Suite 105 2500 Terminal Tower Lyndhurst, Ohio 44124 50 Public Square Cleveland, Ohio 44113-2241 KENNETH A. BOSSIN, ESQ. 330 Standard Building 1370 Ontario Street Cleveland, Ohio 44113-1701 - 2 - PER CURIAM: This appeals challenges an order of the trial court granting summary judgment against tenants on their contract and landlord tenant act claims arising out of the backup of a sewer into the basement of the leased premises. Plaintiffs-appellants Robert and Shirley Paul filed an amended complaint in the trial court on January 20, 1993. The complaint raised five claims, three of which have been settled and are not part of this appeal. Plaintiffs alleged that the basement of the leased premises flooded twice in September of 1990 because of "storm sewer overflow and sanitary sewer back-up." Plaintiffs alleged the landlords had previously promised to repair the basement and that the flooding in the basement rendered premises unfit for habitation. Defendants-appellees Angelo Semirale, Jr. and Deborah Maggard filed a joint motion for summary judgment on these contract and landlord tenant act claims. Defendants' motion argued they had no duty to maintain the sewer system which backed up and damaged plaintiffs' personal property in the basement. Defendants argued that the City of Mayfield Heights, which was not a party to the case, had the duty to maintain the sewer system. Plaintiffs' brief in opposition was supported by an affidavit which repeated essentially verbatim the allegations in their complaint. The trial court granted the motion for summary judgment. Plaintiffs timely appeal raising the following sole assignment of error: - 3 - THE COURT ERRED AS A MATTER OF LAW AND TO THE PREJUDICE OF THE APPELLANTS IN GRANTING APPELLEES' MOTION FOR PARTIAL SUMMARY JUDGMENT. This assignment lacks merit. Plaintiffs-tenants argue defendants failed to show Mayfield Heights had the duty to maintain the sewer system and that they raised genuine issues of material fact to support their claims against defendant landlords in this case. Plaintiffs have failed to show that defendants had a duty to prevent "storm sewer overflow and sanitary sewer back-up" in this case. It is settled law that municipalities have the duty to maintain their public sewer systems. Doud v. City of Cincinnati (1949), 152 Ohio St. 132, 137. Plaintiffs have not shown that defendant landlords contractually assumed such duty or that the landlord tenant act imposed this duty on defendants. Moreover, plaintiffs presented no evidence that the overflow or back-up resulted from any condition on defendant's premises that defendant landlords had the duty to correct. It is well established that, to defeat summary judgment, plaintiffs are required to go beyond the allegations in their complaint and must produce evidence to satisfy the burden of proving their claims. Under the circumstances, plaintiffs have failed to present such evidence in this case. Accordingly, plaintiffs' sole assignment of error is overruled. Judgment affirmed. - 4 - 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. DAVID T. MATIA, PRESIDING JUDGE DIANE KARPINSKI, JUDGE TIMOTHY E. McMONAGLE, JUDGE 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 .