COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71559 ANGELA SIMS : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION CITY OF CLEVELAND, ET AL. : : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: JULY 3, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-296181. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Robert W. Todt, Esq. Berger & Kirschenbaum Co., L.P.A. 1919 East 13th Street Cleveland, Ohio 44114 For Defendants-appellees: Heather Graham-Oliver Assistant Director of Law 601 Lakeside Avenue City Hall, Room 106 Cleveland, Ohio 44114 - 2 - SWEENEY, JAMES D., C.J.: Plaintiff-appellant Angela Sims appeals the trial court's order granting the motion for summary judgment filed by the defendant-appellee the City of Cleveland. After reviewing the record, we affirm the trial court's decision. On the morning of February 21, 1994, appellant was walking her sister's dog when she stepped on a manhole cover located in the sidewalk on the southwest corner of East 101st Street and Western Avenue, Cleveland, Ohio. The appellant testified in her deposition that at the time of the accident she lived on Newton Avenue, and that she fell within the same block as her home. There was nothing unusual about the appearance of the manhole cover as the appellant approached the area. The appellant stepped on the manhole cover with her entire foot and then, "[she] slipped down. [Her] other knee hit the ground. [She] still had the dog in [her] hand and the manhole flipped over." (Sims depo T. 10.) The appellant fell into the hole knee deep injuring her shin, back and ankle. Ralph King, a foreman operator of the Water Pollution Control department for the City of Cleveland, was the person responsible for the subsequent repair of the manhole. He testified at his deposition that a manhole cover sits on a concrete chime, or lip. In order to test the sufficiency of the chime, the cover must be stepped upon. In general, a chime should be replaced when one- fourth of it is missing because there is a potential hazard. When - 3 - one-half of the chime is missing, it must be replaced because it has become a hazard. In this particular case, when Mr. King stepped on the manhole cover at the corner of East 101st Street and Western Avenue, there was no movement or flipping of the cover. When he opened the cover, Mr. King found that one-fourth of the chime was missing. Mr. King further described the missing section as between the three and five when looking at a clock face. Once the cover was replaced, Mr. King testified that he stood over the missing portion of the chime and found that the cover neither flipped nor moved. Mr. King also noted that while portions of the underlying brickwork were in disrepair, the sections in disrepair were not under the missing section of the chime. Mr. King opined that the missing chime section was caused by wear and tear; and that there is no method of determining the length of time the manhole has been in this condition. The appellant set forth the following assignment of error: THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT, AS GENUINE ISSUES OF MATERIAL FACT EXIST FROM WHICH REASONABLE MINDS COULD REACH DIFFERENT CONCLUSIONS REGARDING WHETHER APPELLEES WERE NEGLIGENT. The appellant argues that the trial court erred in granting the appellee's motion for summary judgment because reasonable minds can differ as to whether or not the appellee had actual or constructive notice of the defective condition of the manhole. The appellant asserts that appellee's failure to inspect the manhole is - 4 - sufficient to impose upon the appellee constructive notice of the defect and asserts that the City is not entitled to governmental immunity for its failure to inspect the manhole. Summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from the evidence that reasonable minds can come but to one conclusion; 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. Turner v. Turner (1993), 67 Ohio St.3d 337, citing to Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, and Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. The nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Celotex Corp. v. Catrett (1978), 477 U.S. 317. An appellate court reviews the lower court's determination on a motion for summary judgment de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579. The appellant has filed this action pursuant to R.C. 732.01 asserting that the City has failed in its duty to keep its sidewalk in repair and free from damage. This court has held that the City must keep its sidewalks and streets "open, in repair and free from nuisance." See Jackson v. City of South Euclid (Sept. 28, 1995), Cuyahoga App. No. 68169, unreported, citing to Hamila v. Cleveland (1993), 91 Ohio App.3d 618, 620 and Ruwe v. Bd. of Springfield Twp. - 5 - Trustees (1987), 29 Ohio St.3d 59. Liability for damages for failure to perform such duty cannot arise except upon proof either that its agents or officers actually created the faulty condition from which the injury resulted or that it had notice thereof, actual or constructive. Hamila, supra, at 620-621. In order to charge a municipality with constructive notice of a nuisance, it must appear that such nuisance existed for a sufficient length of time to have been discovered, and that if it had been discovered, it would have created a reasonable apprehension of a potential danger. Jackson, supra. In the case sub judice, construing all evidence in favor of the appellant, the appellant has failed to provide any evidence as to the length of time the manhole chime had been in disrepair and thereby creating a nuisance in the sidewalk. The only evidence provided as to the reason for the disrepair was given by Mr. King in his deposition where he testified that the missing portion of the chime was caused by wear and tear. Mr. King also stated that there is no way to determine the length of time this condition existed. It appears that this condition could have occurred momentarily before the appellant fell into the manhole or that it could have existed for a considerable length of time. See the decision of the Second District Court of Appeals in Bertram v. Kroger Company (1955), 72 Ohio Law Abs. 398. This imprecision is insufficient to charge the City with constructive notice of the nuisance. - 6 - Since the appellant has failed to establish that the City breached its duty to keep the sidewalk in repair and free from nuisance, this court will not consider the issue of whether or not the City violated a duty to inspect the manhole or whether the City is entitled to immunity for its actions or inactions. The appellant's assignment of error is overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant 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 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. Exceptions. PATRICIA A. BLACKMON, J., and KENNETH A. ROCCO, J., CONCUR. JAMES D. SWEENEY CHIEF JUSTICE 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 .