COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73778 BETTY M. ELKINS : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION CITY OF LAKEWOOD, et al : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 25, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 285,227 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: PAUL N. KAUFMAN Attorney at Law 50 Public Square, #801 Cleveland, Ohio 44113-2203 For defendant-appellee ROGER D. TIBBETTS City of Lakewood : Assistant Director of Law 12650 Detroit Avenue Lakewood, Ohio 44107 For defendants-appellees JOHN J. OWENS William & Jane Markus: Attorney at Law 113 St. Clair Building, #525 Cleveland, Ohio 44114 (Cont.) APPEARANCES (Continued): For defendants-appellees ROBERT G. HURT Terrance & Natalie Attorney at Law Meehan : 7029 Pearl Road, #310 Middleburg Heights, Ohio 44130 -2- BRIAN D. KERNS Attorney at Law 6902 Pearl Road, #502 Middleburg Heights, Ohio 44130 -3- KENNETH A. ROCCO, J.: Appellant appeals the trial court's decision granting summary judgment in favor of appellees. Since our review of the entire record indicates there is no issue of material fact remaining to be litigated, summary judgment was properly granted. We affirm the trial court's determination. Appellant Betty M. Elkins filed an action alleging negligence against appellees Terrance and Natalie Meehan and the City of Lakewood.1 Appellant apparently suffered a broken arm after she tripped and fell on the sidewalk in front of appellees' home in the City of Lakewood. Both appellees and the City of Lakewood filed motions for summary judgment following the completion of discovery. The trial court granted appellees' motion and denied the City's motion. Appellant now appeals the trial court's decision granting appellees' motion for summary judgment. On July 15, 1993, appellant was walking along Cove Avenue towards Clifton Boulevard where she planned to catch the No. 55 bus. Appellant routinely took the bus to her job and had followed this same route five days a week for approximately five years. While she was walking, she heard a train. At her deposition, appellant stated that she took about three steps, because I started to run, okay, to see where the train was. And my foot got caught and I went flying. She felt her toe catch. 1 The City of Lakewood is not a party to this appeal. -4- Appellant had noticed grass growing across where she fell and acknowledged that she probably didn't realize that there was an indentation there. The incident occurred on a gorgeous day, sunny and warm. Appellant was looking straight ahead. The police report filed reporting the incident indicates that the location of the accident was 1318 Cove Avenue. The property abutting the sidewalk on which appellant allegedly fell was owned by appellees. Natalie Meehan, at her deposition, stated that she did not see appellant fall but noticed a bag on the ground when she exited her house to sit on her porch. She found appellant on the ground between her sidewalk and her neighbor's driveway. Appellee had purchased the property in November 1992. She had not done any improvements with respect to the sidewalks in front of her home. She did acknowledge that she had cleaned up some of the grass that was growing on the sidewalk and had noticed a discrep- ancy between her sidewalk and her neighbor's driveway. Appellant's sole assignment of error contends: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING SUMMARY JUDGMENT TO DEFENDANTS, TERRANCE AND NATALIE MEEHAN. Before summary judgment can 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 the evidence that reasonable minds can come to but one conclusion and, viewing the evidence most strongly in favor of the non-moving party, that conclusion is -5- adverse to that party. Welco Industries, Inc. v. Applied Cos. (1993), 67 Ohio St.3d 344, 436, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgments should be awarded with caution; courts must be careful to resolve doubts and construe evidence in favor of the non-moving party. Welco, citing Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356. A reviewing court will review a ruling on a motion for summary judgment de novo. Payton v. Rehberg (1997), 119 Ohio App.3d 183, 187 citing Brown v. Scioto Bd. Of Commrs. (1993), 87 Ohio App.3d 704, 711. In order to successfully state a negligence claim, a plaintiff must identify a duty owed by the defendant, that the breach of that duty proximately caused the injury, and that the plaintiff was injured. Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142. Appellant's complaint contends appellees were negligent in one or more of the following: 1) failing to properly maintain and/or repair; 2) permitting the creation of and continuous existence of a dangerous condition; and 3) failing to properly and adequately warn appellant of a dangerous condition. Unless otherwise demonstrated by the evidence, a sidewalk on a public street is presumed to be under the control of the municipality or public authority. Eichorn v. Lustig's, Inc. (1954), 161 Ohio St. 11. A property owner is generally not responsible for the disrepair of a sidewalk in front of his premises unless the condition is brought about by the landowner's wrongful conduct. Id. at 13. There is no evidence in the record -6- to indicate the sidewalk was other than under the control of the municipality. Exceptions to the general rule have been established whereby a property owner may be held liable for injuries incurred by a pedestrian traversing the sidewalk abutting the landowner's private property. Crowe v. Hoffman (1983), 13 Ohio App.3d 254, 255. These exceptions are: First, when a pedestrian sustains injuries under such circumstances, the abutting prop- erty owner will be liable if a statute or ordinance imposes upon him a specific duty to keep the sidewalk adjoining his property in good repair. Dennison v. Buckeye Parking Corp. (1953), 94 Ohio App. 379 [52 O.O. 38]; Thompson v. Parmly (App. 1948), 54 Ohio Law Abs. 25; McCarthy v. Adams, supra. Second, the property owner will be liable if by affir- mative acts he created or negligently main- tained the defective or dangerous condition causing the injury. Eichorn v. Lustig's, Inc., supra; Bertram v. Kroger Co., supra; Cavanaugh v. Struthers Bowling Ctr. (1954), 99 Ohio App. 530 [59 O.O. 424]; McCarthy v. Adams, supra. Third, the property owner will incur liability if he negligently permitted the defective or dangerous condition to exist for some private use or benefit. Eichorn v. Lustig's, Inc., supra; Cavanaugh v. Struthers Bowling Ctr., supra; Thompson v. Parmly, supra. Id. at 255-256. As to the first exception, this court has noted that an ordinance enacted by a municipality imposing liability on a property owner for damages sustained by a third party may not be relied upon to impose liability where the municipality fails to provide the owner with notice of the violation. Kingston v. Austin Development Co. (Feb. 5, 1998), Cuyahoga App. No. 72034, unre- ported, citing Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367 as -7- followed by Hughes v. Kozak (Feb. 22, 1996), Cuyahoga App. No. 69007, unreported. Although the City of Lakewood served appellees with a citation for the sidewalk, there is no dispute that this was not done until after the incident in the within action had occurred. Additionally, there is no evidence submitted by appellant to indicate that appellees either created or negligently maintained the condition or permitted the condition to exist for any private use or benefit. Appellant has failed to submit any evidence to demonstrate that summary judgment was improperly granted in appellees' favor. Appellant's appeal is not well-taken. -8- It is ordered that appellees recover of appellant their 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. JAMES M. PORTER, P.J. and MICHAEL J. CORRIGAN, J. CONCUR JUDGE KENNETH A. ROCCO 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 .