COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72257 DORA PHIPPS : : ACCELERATED DOCKET Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION CHARISE PATTON, et al. : : PER CURIAM Defendant-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 11, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 292,206 JUDGMENT : AFFIRMED IN PART; REVERSED IN PART AND CAUSE REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: TIMOTHY P. MISNY Attorney at Law 50 Public Square, #805 Cleveland, Ohio 44115 DAVID C. LANDEVER Attorney at Law Weisman, Goldberg & Weisman 1600 Midland Building Cleveland, Ohio 44115 (Continued) APPEARANCES (cont.): For defendant-appellee NICHOLAS J. FILLO Charise Patton : Attorney at Law 2 Fillo & Siskovic 1520 Standard Building Cleveland, Ohio 44113 For defendant-appellee RONDA G. CURTIS City of East Cleveland: Assistant Director of Law City of East Cleveland 14340 Euclid Avenue East Cleveland, Ohio 44112 3 PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas and the briefs of counsel. Plaintiff-appellant, Dora Phipps ( appellant ), appeals the decision of the Cuyahoga County Common Pleas Court that granted summary judgment to defendant-appellee, City of East Cleveland ( City ), on appellant's complaint seeking damages for injuries she sustained in an automobile collision. For the reasons that follow, we affirm in part and reverse in part. The record reflects that appellant was involved in an automobile collision with Charise Patton ( Patton ) at the intersection of Noble Road and Elderwood Avenue in East Cleveland on June 11, 1995. Appellant later commenced suit against several defendants, including the City, alleging that an overgrowth of shrubbery and other foliage obstructing Patton's view constituted a nuisance, making the City liable for appellant's injuries under R.C. 2744.02(B)(3) and R.C. 2744.03(a)(5).1 Alternatively, appellant alleged that the City's failure to install a traffic signal constituted a nuisance and created liability under the same statute. The City and the Hamiltons each cross-claimed the other based on theories of indemnification and contribution. 1Appellant's complaint was amended several times. In its most recent amendment, only the City and the landowners, Robert Hamilton and Theresa Hamilton, were named defendants. According to the parties' briefs, appellant's claims against Patton were settled. 4 The City eventually moved for summary judgment,2 arguing that the offending foliage was on private property over which the City had no control. Appended to its motion was, inter alia, the affidavit of Roger Blum, a project engineer for the City, which incorporated photographs of the intersection, taken nearly sixteen months after the accident, depicting the shrubbery and other foliage on the Hamiltons' property in relation to the adjacent roadways. In its brief opposing the motion, appellant maintained that the shrubbery was under the City's control and its overgrowth created a danger to traffic. In support of its argument, appellant appended to its brief the affidavit of Henry P. Lipian, an accident reconstructionist, opining that the intersection was unsafe because of the overgrowth of foliage. In reaching his opinion, Mr. Lipian relied upon, inter alia, photographs taken the day of the accident. Additionally, appellant also attached a letter from Timothy Burroughs, chief housing inspector for the City, requesting Hamilton to remove the shrubbery, as well as Burroughs' testimony regarding the City's authority to cite a landowner for overgrown shrubbery; deposition testimony of Janetta Rowland, a City housing inspector, testifying as to the City's right of inspection; and excerpted deposition testimony from two neighbors as to the condition of the property and the number of accidents in that area. In its opinion granting summary judgment to the City, the trial court reasoned as follows: 2The Hamiltons likewise moved for summary judgment, which was denied. 5 [Defendant] City of East Cleveland's Motion for Summary Judgement (sic) (filed 11/1/96) is hereby granted. Court finds that all of the alleged offending overgrown trees [and] shrubs were located on property which was neither owned or under the control of the City. Further, there is no evidence that the City was negligent in failing to install a traffic light at subject intersection. Further, the decision to install a traffic signal is a discretionary decision for which the City is immuned (sic) from liability. The court then dismissed appellant's claims, as well as Hamiltons' cross-claim against the City. Appellant subsequently dismissed her claims against the Hamiltons pursuant to Civ.R. 41(A)(1). In her appeal to this court, appellant assigns the following errors for our review. I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT CITY OF EAST CLEVELAND'S MOTION FOR SUMMARY JUDGMENT AS SAID MOTION FAILED TO MEET ITS BURDEN UNDER OHIO RULE OF CIVIL PROCEDURE 56(C). II. THE TRIAL COURT ERRED IN RULING THAT THE SUBJECT PROPERTY WAS NOT UNDER THE CONTROL OF THE DEFENDANT, CITY OF EAST CLEVELAND, PURSUANT TO THE FACTS SET FORTH IN PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. III. THE TRIAL COURT ERRED IN RULING THAT AS A MATTER OF LAW DEFENDANT CITY OF EAST CLEVELAND DID NOT ACT IN A RECKLESS MANNER IN FAILING TO REMEDY THE NUISANCE CONDITION. Appellant did not argue each assignment of error separately as required by App.R. 16(A)(7). Nonetheless, her assignments of error are all related and challenge the appropriateness of the trial 6 court's decision granting the City summary judgment. As such, this court will address them together. Succinctly, appellant contends that the City had control over the property which contained the overgrowth of foliage and that its failure to insure that the foliage was removed created a nuisance under R.C. 2744.02(B)(3). Appellant further contends that the failure to abate this nuisance was wanton and reckless from which it is not absolved from liability pursuant to R.C. 2744.03(A)(5). In reviewing a motion for summary judgment, an appellate court conducts a denovo review of the trial court's decision. A court reviewing the granting of a summary judgment must follow the standards set forth in Civ.R. 56(C) *** . Aglinsky v. Cleveland Builders Supply Co. (1990), 68 Ohio App.3d 810, 814. Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from such evidence that reasonable minds can come to but one conclusion and, reviewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. The burden of establishing that no genuine issues to any material fact remain to be litigated is on the party moving for summary judgment. Turnerv. Turner (1993), 67 Ohio St.3d 337, 340; Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 120. Once a party 7 moves for summary judgment and has supported the motion with sufficient and acceptable evidence, the party opposing the motion has a reciprocal burden to respond by affidavit or as otherwise provided in Civ.R. 56(C), setting forth specific facts explaining that a genuine issue of material fact exists for trial. Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. A motion for summary judgment forces the nonmoving party to produce evidence on all issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. It is the moving party, however, who bears the initial responsibility of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim. Dresher v. Burt (1996), 75 Ohio St.3d 280, 296. The Political Subdivision Tort Liability Act, codified at R.C. Chapter 2744, governs the tort liability of political subdivisions. In general, 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). The maintenance of roads and highways is a governmental function. See R.C. 2744.01(C)(2)(g). This broad grant of immunity, however, is sub- ject to five exceptions, of which R.C. 2744.02(B)(3) is relevant to this case. This subsection provides: 8 Political subdivisions are liable for injury, death, or loss to persons or property caused by their failure to keep public roads, highways, streets, avenues *** within the political subdivision open in repair and free from nuisance. Once an exception to immunity is met, a political subdivision can avoid liability if one of the defenses or immunities provided in R.C. 2744.03 applies. Pertinent to this appeal is subsection (A)(5), which provides: The political subdivision is immune from liability if the injury *** or loss to persons or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources, unless the judgment or discretion was exercised with malicious purpose, or in bad faith, or in a wanton or reckless manner. In Manufacturer's Natl. Bank of Detroit v. Erie Cty. Road Comm. (1992), 63 Ohio St.3d 318, the Supreme Court of Ohio determined that a permanent obstruction to visibility within the highway right-of-way that renders the regularly-traveled portions of the highway unsafe for usual and ordinary course of travel can be a nuisance for which a political subdivision may be liable under this statute. Id.at paragraph one of the syllabus. Right- of-way was defined as: *** land, property, or the interest therein, usually in the configuration of a strip, acquired for or devoted to transportation purposes. When used in this context, right- of-way includes the roadway, shoulders or berm, ditch and slopes extending to the right- of-way limits under the control of the state or local authority. 9 Id. at 322; see, also, R.C. 4511.01(UU)(2). In determining appropriate duty, the Manufacturer's Natl. Bank found that a political subdivision's duty extends to the conditions in the right-of-way that directly affect the safe use of the highway for the regular and ordinary course of traffic. Nonetheless, the focus should be on whether the alleged obstruction exists within the political subdivision's control. If the requisite control is found, then liability could attach under this statute. Id. at 321- 323. When an abutting landowner uses a highway right-of-way in a manner inconsistent with a highway purpose and this usage creates an unreasonable hazard to users of the highway, the landowner may be liable for damages caused by the improper use of the highway. Id. at paragraph two of the syllabus; see, also, Neiderbrach v. Dayton Power and Light Co. (1994), 94 Ohio App.3d 334, 336-338. Employing this reasoning, this court in Weber v. Condren (Sept. 21, 1995), Cuyahoga App. No. 68268, unreported, determined that a political subdivision was not liable under R.C. 2744.02(B)(3) for the death of a young boy when a motorist's view of one side of the road was allegedly obstructed by an overgrowth of foliage extending from adjacent private property. The Weber court concluded that the foliage did not encroach or otherwise obstruct the traveled portion of the roadway so as to render travel on that road unsafe and, therefore, summary judgment should have been granted to the municipality. Cf. Franks v. Lopez (1994), 69 Ohio St.3d 345, 349 (overhanging branches and foliage that obscure traffic signs, as an example, could constitute nuisance for which 10 political subdivision has responsibility to abate); Manufacturer's Natl. Bank, 63 Ohio St.3d at 322-323 (cornfield extending onto highway right-of-way under control of township could constitute nuisance if it made ordinary travel on highway unsafe). As can be ascertained from the photographs appended to the City's motion, the offending foliage that allegedly obstructed Patton's view was not within the highway right-of-way nor did it extend into the right-of-way at any conceivable angle. These photographs, however, were taken nearly sixteen months after the accident and, in fact, may well not be representative of the site as it existed on June 11, 1995. The City concedes as much in its reply to appellant's opposition brief ( *** it is obvious that the extent of the alleged overgrowth one year after the incident could be significantly different than the conditions as alleged to have existed on the date in question. ). This fact alone puts at issue the condition of the roadway on the day of the accident and is sufficient to defeat the City's motion for summary judgment. Dresher v. Burt, 75 Ohio St.3d at 296. Notwithstanding, the affidavit of Mr. Lipian in opposition further puts at issue the condition of the roadway on the date of the accident. Specifically, he avers that he relied on photographs taken the day of the accident and that, at least in part, his conclusion is based upon these photographs. Consequently, whether the foliage overgrowth extended into the right-of-way on the date of the accident is a genuine issue of material fact that remains to be litigated. 11 Nonetheless, the City does not bear responsibility for appellant's injuries because of appellant's claims that the road was negligently constructed or that the City failed to erect a traffic signal. Such claims do not constitute an actionable nui- sance. See Franks v. Lopez, 69 Ohio St.3d at 349-350; see, also, Williamson v. Pavlovich (1989), 45 Ohio St.3d 179, 185; Winwood v. Dayton(1988), 37 Ohio St.3d 282, 284. Thus, summary judgment was appropriately granted on this issue. Construing the evidence most strongly in appellant's favor as we must, appellant's documentary evidence sufficiently raises a genuine issue of fact material to its case. Consequently, summary judgment was inappropriately granted to the City on the issue of whether the overgrown foliage on the day of the accident constituted a nuisance. Summary judgment was appropriately granted, however, on appellant's claim against the City for failure to install traffic signage or signals as well as its claims for negligent construction or design of the roadway. Accordingly, appellant's assignments of error are sustained in part and overruled in part, and this case is remanded to the trial court for proceddings not inconsistent with this opinion. 12 It is ordered that appellee and appellants split equally the 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 Court of Common Pleas 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. DIANE KARPINSKI, PRESIDING JUDGE (See attached concurring opinion) TIMOTHY E. McMONAGLE, JUDGE KENNETH A. ROCCO, 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72257 13 DORA PHIPPS : : : Plaintiff-Appellant : : CONCURRING v. : : OPINION CHARISE PATTON, ET AL. : : : Defendant-Appellees : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 11, 1997 KARPINSKI, P.J., CONCURRING: Although I agree with the majority opinion that the city did not meet its burden under Dresher v. Burt, ante, I write separately to emphasize that in order to succeed in her claim, plaintiff will have to establish, in part, that the obstruction to visibility was within the highway right of way. Manufacturer's Natl. Bank of Detroit, ante, paragraph one of the syllabus. In addition, plaintiff must establish that because of the alleged obstruction, .