COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72046 ROSEMARY HARRELL, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION REIDER'S STOP-N-SHOP, ET AL. : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION DECEMBER 4, 1997 CHARACTER OF PROCEEDING: APPEAL FROM THE CUYAHOGA COUNTY COMMON PLEAS COURT CASE NO. CV-303592 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: DAVID R. GRANT (#0065436) THOMAS J. SILK (#0021462) SMITH, CONDENI AND ABEL CO., L.P.A. The Sterling Building, Suite 505 1255 Euclid Avenue Cleveland, Ohio 44115 For Defendants-Appellees: MARC A. SANCHEZ (#0063998) 101 Prospect Avenue, West 1700 Midland Building Cleveland, Ohio 44115 SPELLACY, J.: Plaintiffs-appellants, Rosemary and Raymond Harrell, natural parents of Nathan Harrell, a minor ( appellants ), appeal the -2- judgment of the trial court granting the summary judgment motion of defendant-appellee, Reider's Stop-N-Shop, ( appellee ). Appellants assign the following two errors for our review: I. THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHEN SEVERAL QUESTIONS OF FACT EXISTED AS TO THE PLAINTIFF-APPELLANT. II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT WHEN THE ISSUE OF WHETHER THE POTHOLE IN DEFENDANT-APPELLEE'S PARKING LOT WAS OPEN AND OBVIOUS CREATED A QUESTION OF FACT IN AND OF ITSELF SUFFICIENT TO OVERCOME A SUMMARY JUDGMENT MOTION. Finding appellants' appeal to lack merit, the judgment of the trial court is affirmed. I. On February 21, 1994, appellant Raymond Harrell and his three- year old son Nathan Harrell went to appellee Reider's Stop-N-Shop at 12782 Rockside Road in Garfield Heights, Ohio. Upon entering the grocery store, appellant Raymond Harrell did not notice any cracks, depressions or holes in the parking lot pavement. After finishing his grocery shopping, appellant Raymond Harrell, who was pushing Nathan in a shopping cart, proceeded from appellee's store back to his automobile. Approximately half way between the entrance of appellee's store and the store's parking area, appellant saw a vehicle approaching from his left hand side. Appellant, looking to his left, continued to push the cart forward and took a few quick steps when the front tires of the grocery cart hit a pothole. As a result, the shopping cart fell to its side and Nathan Harrell fell to the pavement sustaining serious injuries to -3- his head. On February 20, 1996, appellants, Rosemary and Raymond Harrell filed a complaint in the Cuyahoga County Court of Common Pleas against defendant-appellee Reider's Stop-N-Shop, Store #7, for loss of consortium for the injuries sustained by their son. On March 19, 1996, appellee filed its answer and a third-party complaint against Forest City Rental Properties Corporation and Milton A. Wolf for indemnification. Appellee voluntarily dismissed its third-party complaint against Forest City Rental Properties Corporation and Milton A. Wolf on May 2, 1996. On May 20, 1996, appellee filed an amended third-party complaint against Associated Estates Corporation. However, on December 4, 1996, appellee voluntarily dismissed its third-party complaint against Associated Estates Corporation. On November 22, 1996, appellee filed a motion for summary judgment. The trial court granted appellee's motion for summary judgment on January 17, 1997. II. In their first assignment of error, appellants assert that the trial court erred in finding appellee was not responsible for the maintenance and repair of the parking lot attached to appellee's store and subsequently granting appellee's motion for summary judgment. The test for granting a motion for summary judgment is set forth in Civ.R. 56 and in numerous cases interpreting the rule. The law is clear that: -4- 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. Lovsin, et al. V. J.C. Penney Company, Inc., et al. (May 9, 1996), Cuyahoga App. No. 69520, unreported, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. Initially, we note that appellant settled and dismissed all claims against the landowner prior to the initiation of the present action. The general rule when interpreting contracts is that a contract should be construed so as to give effect to the intentions of the parties. Id.citing Employers' Liability Assurance Corp. V. Roehm(1919), 99 Ohio St. 343, syllabus. Thus, it is a fundamental principle in contract construction that contracts should be interpreted so as to carry out the intent of the parties, as that intent is evidenced by the contractual language. Skivolocki v. E. Ohio Gas Co. (1974), 38 Ohio St.2d 244. In the present case, the following language of the written lease agreement clearly and unambiguously states that the lessors, Forest City Rental Properties Corporation, Forest City Enterprises, Inc., and Milton A. Wolf are responsible for maintaining and repairing common areas on the premises. The Lease Agreement states: 2. Common Areas. Lessor grants to Lessee (appellee), its customers, employees, agents -5- and invitees * * * privilege and easement to use * * * all areas of the shopping center now or hereinafter designated for the common use of the foregoing parties including but not limited to all of the parking areas, driveways, sidewalks and service areas (hereinafter call the Common Areas )* * *. Lessor shall hard surface, properly drain, adequately light * * * and landscape the parking areas and shall operate, manage, equip, repair and maintain the Common Areas for their intended purposes, in a good and proper manner. Clearly, the terms of the Lease Agreement set forth supra establish the parties' intent that the lessor, not appellee, the lessee, was responsible for repair and maintenance of all Common Areas. Appellants, however, contend that the Lease Agreement, by its terms, obligates appellee to notify the lessor of any repairs needed to made on the premises. Section 15 of the Lease Agreement provides: REPAIRS BY LESSOR. Lessor agrees at its expense throughout the term hereof, * * * (v) to make all necessary replacements, repairs and perform all necessary maintenance and custodial service with regard to the Common Areas as provided in Section 2 herein * * *, the failure of Lessor to comply with any covenant to maintain or repair shall not constitute a default or breach of such covenant nor shall Lessor be responsible for said repairs unless Lessee shall have notified Lessor thereof * * *. We agree with appellee's contention that the parties clearly intended for the notice provision in Section 15 of the Lease Agreement to protect the Lessor from a possible breach of its covenant to repair. Furthermore, Section 15 of the Lease Agreement does not impose any additional duties upon appellee for which -6- appellee could be held liable. Accordingly, interpreting the contractual language of the Lease Agreement in its entirety, it is clear that the parties intended for the Lessor to be responsible for the maintenance and repair of the Common Areas, including the parking lot. Appellants' first assignment of error is overruled. III. In their second assignment of error, appellants contend that summary judgment was improperly granted by the trial court where the issue of whether the pothole in the parking lot was open and obviously created a question of fact to be determined by a jury. Because we have found that appellee, pursuant to the lease agreement, was not responsible for maintaining and repairing the Common Areas attached to the grocery store, appellants' second assignment of error is moot and will not be addressed by this Court. Judgment affirmed. -7- It is ordered that appellee 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 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. TIMOTHY E. MCMONAGLE, P.J. and KENNETH A. ROCCO, J. CONCUR. __________________________ LEO M. SPELLACY Judge 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 -8- journalization of this court's announcement of decision by the .