COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73191 ZHANNA MAGRAM, ET AL. : : : Plaintiffs-appellants : : : -vs- : JOURNAL ENTRY : AND CITY OF EAST CLEVELAND, ET AL. : OPINION : Defendants-appellees : DATE OF ANNOUNCEMENT : AUGUST 13, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court Case No. CV-328562 JUDGMENT : Reversed and remanded. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: A Scott Fromson, Esq. Susan Priest Richlak, Esq. Fromson & Zukerman 160 Signature Square I 25201 Chagrin Blvd. Cleveland, Ohio 44122 For defendant-appellee James H. Hewitt, III, Esq. City of East Cleveland: Director of Law Ronda G. Curtis, Esq. Assistant Director of Law City of East Cleveland 14340 Euclid Avenue East Cleveland, Ohio 44112 Attorneys continued: For defendant-appellee Cuyahoga County Bd. of Stepahnie Tubbs-Jones, Esq. Commissioners: Gregory B. Rowinski, Esq. Assistant Cuyahoga Cty. Pros. -2- 1200 Ontario Street 8th Floor Cleveland, Ohio 44113 -3- MICHAEL J. CORRIGAN, J.: Plaintiffs-appellants, Zhanna Magram, et al., appeal the decision of the Cuyahoga County Court of Common Pleas which granted the motions to dismiss filed by defendants-appellees, the City of East Cleveland, et al. Plaintiffs-appellants raise four errors for review. This court, finding error, reverses the decision of the trial court and remands this case back for further proceedings. On or about January 31, 1996, at approximately 8:00 p.m., plaintiff-appellant, Zhanna Magram, was operating her motor vehicle on Forest Hills Blvd., within the City of East Cleveland, defendant-appellee. The road was covered with snow and ice. Plaintiff-appellant lost control of her vehicle and slid off the roadway sustaining severe injuries. On January 24, 1997, plaintiffs-appellants, Zhanna Magram and her son, Uri, filed a complaint against the City of East Cleveland, the Cuyahoga County Board of Commissioners ( Commissioners ), the Cuyahoga County Engineer ( Engineer ) and two John Doe defendants responsible for the maintenance of the street. Plaintiffs- appellants alleged, among other things, that the City of East Cleveland failed to keep the roadway open, in repair and free of nuisance. Plaintiffs-appellants alleged the Commissioners and Engineer negligently failed to keep the roadway in proper repair by allowing the creation and continuance of snowy/icy conditions on the roadway which constituted a nuisance. It is apparent that there has been considerable confusion regarding the procedural history of this case between all parties -4- and the trial court. However, for purposes of this appeal, we state the following. On February 21, 1997, defendants-appellees, the Commissioners and Engineer, filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim, which was granted. The trial court then vacated its judgment since it had previously granted plaintiffs-appellants the opportunity to respond. Plaintiffs- appellants eventually filed a brief in opposition and in the alternative, a motion to amend their complaint.1 The trial court ultimately issued an entry granting the motion to dismiss. On April 14, 1997, defendant-appellee, the City of East Cleveland, filed a motion to dismiss or in the alternative, a motion for summary judgment. The City of East Cleveland argued, among other things, that a municipality cannot be held liable for the natural accumulation of ice and snow upon its roadways. After several continuances, plaintiffs-appellants filed a Brief in Opposition to the City of East Cleveland's Motion to Dismiss or in the alternative, a Motion for Continuance pursuant to Civ.R. 56(F). On July 24, 1997, the trial court issued an order stating [Defendant] the City of Cleveland's motion to dismiss or in the alternative, motion for summary judgment is granted. Plaintiffs-appellants timely appeal. Since plaintiffs-appellants' first and third assignments of errors contain similar issues of law and fact and are dispositive of this appeal, we will consider them concurrently: 1In response, defendants-appellees filed a motion to strike or, in the alternative, reply brief on or about July 11, 1997. -5- I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLANT'S MOTION TO DISMISS. III. THE TRIAL COURT ERRED IN GRANTING DEFENDANT CITY'S MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT. In their first assignment of error, plaintiffs-appellants argue the trial court committed prejudicial error when it granted defendants-appellees, the Commissioners and Engineer's, motion to dismiss for failure to state a claim. Specifically, plaintiffs- appellants argue that when reviewing the complaint in a light most favorable to plaintiffs-appellants, the complaint states a valid cause of action against the County for allowing the creation of a nuisance. In their third assignment of error, plaintiffs-appellant argue the trial court similarly erred in granting a motion to dismiss for failure to state a claim since they alleged the City allowed the area of road to be in a condition which constituted a nuisance. In the alternative, plaintiffs-appellants argued the trial court erred in granting summary judgment since they were not given proper notice of the court's intention to treat the motion in accordance with Civ.R. 56 and/or they were not permitted additional discovery pursuant to Civ.R. 56(F). Again, we stress that after reviewing the record, it is clear there was substantial confusion between the parties and the trial court which in some instances issued conflicting journal entries. Since we cannot presume to know in what manner the trial court reviewed the City of East Cleveland's motion, we are constrained to -6- resolve this appeal by reviewing the judgments of the trial court based solely upon a Civ.R. 12(B)(6) standard of review. A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Ct. Bd. of Commrs. (1992), 65 Ohio St.3d 545. It is well settled that, when a party files a motion to dismiss for failure to state a claim, all factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the nonmoving party. Byrd v. Faber (1991), 57 Ohio St.3d 56, 60, citing Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192. The Political Subdivision Tort Liability Act is codified in R.C. 2744.02 which states in pertinent part: Except as provided in Division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or any employee of the political subdivision in connection with a governmental or proprietary function. R.C. 2744.02(B) provides in part: (3) 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 subdivision open, in repair, and free from nuisance ***. We acknowledge that even if a claim alleges that the subdivision is liable under one of the exceptions, the Act provides several defenses and immunities that may nevertheless apply to defeat the tort. R.C. 2744.03. However, as a result of the procedural irregularities accompanying this case, we must review -7- this appeal based solely upon the sufficiency of the complaint and are prohibited from reviewing evidence presented in support of the alternative motion for summary judgment. Plaintiffs-appellants allege in their complaint: (4) At such time and at such location, the Defendant City of East Cleveland failed to keep the roadway open, in repair, and free from nuisance. The Defendant City of East Cleveland allowed the area to be covered with snow and ice and to be in a condition which was not suitable for use by the traversing public and which constituted a nuisance. * * * (14) At all times relevant herein, the Defendants Cuyahoga County Board of Commissioners and the Cuyahoga County Engineer had responsibility, under the laws for the State of Ohio, for keeping the area of Forest Hills Boulevard in proper repair. (15) As set forth hereinabove, the Defendants Cuyahoga County Board of Commissioners and the Cuyahoga County Engineer negligently failed to keep the area of Forest Hills Boulevard in proper repair by allowing the creation and continuance of snowy and icy conditions upon the roadway which constituted a nuisance to the Plaintiff, ZHANNA MAGRAM. *** We recognize that a political subdivision cannot be held liable merely for the natural accumulation of ice and snow since it is not considered a nuisance. See Ball v. Cleveland (1989), 65 Ohio App.3d 305; Lopatkovich v. Tiffin (1986), 28 Ohio St.3d 204. However, in this case, plaintiffs-appellants allege defendants- appellees permitted a condition which constituted a nuisance. While stressing that we are not commenting on the merits of plaintiffs-appellants' allegations and/or their ability to establish the existence of a nuisance within the meaning of R.C. 2744.02, we hold that the complaint, when taken in a light most -8- favorable to plaintiffs-appellants, is sufficient to withstand a Civ.R. 12(B)(6) motion for failure to state a claim. Accordingly, the judgment of the trial court is reversed and the case remanded back for further proceedings. Due to the disposition of plaintiffs-appellants' first and third assignment of error, plaintiffs-appellants' second and fourth assignments of error are rendered moot. App.R. 12(A)(1)(c). Judgment reversed and remanded. -9- It is ordered that appellants recover of appellee 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 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. JAMES M. PORTER, P.J., AND LEO M. SPELLACY, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .