COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70675 WILLIAM GRAVES, ET AL. : : ACCELERATED CASE Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF EAST CLEVELAND : : PER CURIAM Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1997 CHARACTER OF PROCEEDING: APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-291409 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: JEFFREY P. POSNER (#0022075) ZELLMER & GRUBER 1400 Leader Building Cleveland, Ohio 44114 For Defendant-Appellee: JAMES H. HEWITT III (#0012926) Director of Law RONDA G. CURTIS (#0059696) Assistant Director of Law City of East Cleveland 14340 Euclid Avenue East Cleveland, Ohio 44112 - 2 - PER CURIAM: Plaintiffs-appellants William and Marjorie Graves ("appellants") appeal the grant of summary judgment in favor of defendant-appellee the City of East Cleveland. Appellants assign the following errors upon appeal: I. THE TRIAL COURT ERRED IN FINDING THERE WAS NO ACTUAL OR CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION OF THE ROADWAY ON SHELDON AVENUE. II. THE TRIAL COURT ERRED IN EXCLUDING ROBERT GODFREY'S AFFIDAVIT. III. THE TRIAL COURT ERRED IN CONTINUING THE TRIAL AND ALLOWING DEFENDANT TO FILE A SUMMARY JUDGMENT MOTION AFTER ALL PARTIES APPEARED FOR TRIAL. IV. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE CLAIM THAT THE CITY'S FAILURE TO MAINTAIN ITS STREET LIGHTING WAS ACTIONABLE. Finding the second assignment of error to have merit, the judgment of the trial court is reversed. I. On August 16, 1993, at approximately 9:30 p.m., appellant William Graves was crossing Sheldon Road in East Cleveland. Graves lived on Sheldon Road and the section of the street he was traversing was directly in front of his residence. Graves stepped into a pothole and fell, sustaining injuries. The fall caused him to drop a box containing Hummel figurines owned by his mother, Marjorie Graves. Appellants filed suit against East Cleveland but dismissed their complaint. They refiled the action on June 23, 1995, seeking - 3 - to recover for the injuries suffered by William Graves and for the value of the figurines. East Cleveland filed a motion for summary judgment. The trial court granted the motion finding appellants' allegation the city failed to maintain the streetlights to be barred by governmental immunity. The trial court relied on Ugri v. City of Cleveland (Sept. 1, 1994), Cuyahoga App. No. 65737, unreported, in which this court held street lighting to be a governmental function. The trial court further found appellants failed to provide any evidence East Cleveland created the defective condition or had actual or constructive notice. II. In their second assignment of error, appellants contend the trial court erred when it essentially excluded the affidavit of Robert Godfrey, a friend of William Graves. The trial court found Godfrey's affidavit in which he testified that he told the Service Director about broken asphalt in front of appellants' home four months prior to Graves' fall to be in conflict with his deposition testimony in which Godfrey stated he did not complain to anyone regarding the condition of Sheldon Road. The trial court declined to follow McCullough v. Spitzer Motor Ctr., Inc. (Jan. 27, 1994), Cuyahoga App. No. 64465, unreported, in which this court held that Turner v. Turner (1993), 67 Ohio St.3d 337, required summary judgment to be reversed when the affidavit of a nonmoving party contradicted earlier deposition testimony. The trial court in the - 4 - instant case distinguished Turner because Turner held that the affidavit of a moving party contradicting earlier deposition testimony created a dispute of material fact and in this case the affidavit supported the nonmoving party. Appellants must show East Cleveland had constructive notice of the condition of Sheldon Road. A municipal corporation is liable only for negligence in creating a faulty condition or in failing to repair, remove or guard against defects after receiving actual or constructive notice of their existence. Taylor v. Cincinnati (1944), 143 Ohio St. 426. To charge a municipality with constructive notice, the injured party must show that the defect existed in such a manner and for a sufficient length of time that it could or should have been discovered, and that if it had been discovered, it would have created a reasonable apprehension of a potential danger. Beebe v. Toledo (1958), 168 Ohio St. 203, paragraph two of the syllabus. Godfrey's affidavit averred he told East Cleveland's service director four months before about the broken asphalt right where William Graves fell. This is at least some evidence the city had notice of the condition. East Cleveland argues this was not the proper procedure as no complaint slip would be generated. However, it still is evidence the person responsible for correcting this sort of situation was aware of the condition. Pursuant to McCullough, it does not matter that the contradictory evidence is presented by the nonmoving rather than - 5 - the moving party. Other courts have held the opposite. Pain Enterprises, Inc. v. William G. Wessling and DDI Co., Inc. (March 22, 1995), Hamilton App. No. C-930888, unreported and DeHass v. Morakis Sons Industrial Painting Co., Inc. (Feb. 7, 1996), Summit App. No. 17356, unreported. If there is an issue of material fact created in this situation for a party moving for summary judgment, it seems the same should hold true for the nonmoving party as well. Godfrey's affidavit was evidence East Cleveland had notice of the poor condition of the asphalt on Sheldon Road. The trial court erred in granting summary judgment on this issue as a material issue of fact remains in dispute. Appellants' second assignment of error has merit. III. In their fourth assignment of error, appellants assert the trial court erred in granting summary judgment on the issue of East Cleveland's failure to maintain its street lighting. Appellants argue the failure to maintain the street lighting is a nuisance which is actionable under R.C. 2744.02(B)(3) and R.C. 723.01. Appellants claim East Cleveland is not immune from suit under R.C. Chapter 2744. As a general rule, a political subdivision is not liable for an injury, death or loss to persons or property caused by an act or omission of its employees or agents in connection with a governmental or proprietary function. R.C. 2744.02(A)(1). However, a political subdivision is liable in damages in a civil - 6 - action for any injury allegedly caused by an act or omission of the public subdivision or of its employees in connection with a governmental or proprietary function if that act or omission falls within one of the five categories enumerated under R.C. 2744.02(B)(1) through (5). In Ugri v. City of Cleveland (Sept. 1, 1994), Cuyahoga App. No. 65737, unreported, this court determined street lighting to be a governmental function. Pursuant to R.C. 2744.02(B), a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision in connection with a governmental function if one of the exceptions listed under the provision applies. Appellants argue R.C. 2744.02(B)(3) imposes liability upon East Cleveland for the failure to maintain functioning street lights. R.C. 2744.02(B)(3) provides in pertinent part: Political subdivisions are liable for injury, death, or loss to persons or property caused by their failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivisions open, in repair, and free from nuisance. R.C. 723.01 provides that a municipal corporation has the care, supervision, and control of public streets and is to keep them open, in repair, and free from nuisance. Whether a political subdivision is liable under R.C. 723.01 or R.C. 2744.02(B)(3) depends on if a condition exists within the - 7 - political subdivision's control that creates a danger for ordinary traffic on the regularly travelled portion of the road. Manufac- turer's Natl. Bank of Detroit v. Erie Cty. Road Comm. (1992), 63 Ohio St.3d 318, 322. The municipality has a duty to keep the areas within its control free from nuisance which is a condition directly jeopardizing the safety of traffic on the road. Id. Conditions which constitute a nuisance under these provisions are those which affect the safety of ordinary traffic upon the roadway. A malfunctioning traffic light can be a nuisance. Frankhauser v. Mansfield (1969), 19 Ohio St.2d 102. Overhanging branches and foliage which obscure traffic signs, signs which have lost their capacity to reflect, or physical impediments such as potholes may all constitute actionable nuisance claims. Franks v. Lopez (1994), 69 Ohio St.3d 345. The failure to maintain existing signage or traffic signals may also be a nuisance. See Jones v. Shelly Co. (1995), 106 Ohio App.3d 440. The common ground found within these cases is that municipal liability is limited to those conditions which render a street or sidewalk unsafe for usual and ordinary modes of travel. Palko v. Elyria (1993), 86 Ohio App.3d 211. Whether a municipality decides to provide street lighting and where the street lights are placed is discretionary with the municipality. Unlike traffic signals or signage, the provision of street lighting does not directly affect the flow of ordinary traffic on a roadway. Roadways still are safe - 8 - for travel without lighting or with less lighting than may be required to illuminate the entire area. The maintenance of existing traffic control devices and signage is necessary for the safe use of a roadway as the flow of traffic and travelling on the street itself are directly affected. The use of street lights does not have the same impact on the ordinary use of the roadway as traffic lights and signage. Therefore, the failure to maintain existing street lights does not constitute an actionable nuisance under R.C. 2744.02(B)(3) or R.C. 723.01. Appellants' fourth assignment of error is overruled. IV. Appellants' remaining assignments of error are moot. Judgment reversed and remanded. - 9 - This cause is reversed and remanded for further proceedings consistent with this Journal Entry and Opinion. It is, therefore, considered that said appellants recover of said appellees their costs herein. It is ordered that a special mandate be sent to said 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. LEO M. SPELLACY, PRESIDING JUDGE JOSEPH J. NAHRA, J. CONCURS SARA J. HARPER, J. DISSENTS (See Dissenting Opinion Attached) (Two Judges Concur; One Judge Dissents, See Dissenting Opinion Attached) N.B. This 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(B) 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 .