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Schrader v. City of Cleveland

December 4, 2008

MARY ELLEN SCHRADER PLAINTIFF-APPELLANT
v.
CITY OF CLEVELAND, ET AL. DEFENDANTS-APPELLEES



Civil Appeal from the Cuyahoga County Common Pleas Court, Case No. CV-609407, JUDGMENT: REVERSED AND REMANDED.

The opinion of the court was delivered by: James J. Sweeney, A.J.

JOURNAL ENTRY AND OPINION

BEFORE: Sweeney, A.J., Stewart, J., and Dyke, J.

{¶1} This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1.

{¶2} Plaintiff-appellant, Mary Ellen Schrader ("Schrader"), appeals from the judgment of the Common Pleas Court, which granted the motion for summary judgment of defendant-appellee, McTech Corporation ("McTech") and sua sponte granted summary judgment to defendants-appellees, Anthony Allega Cement Contractors, Inc. ("Allega"), and the Greater Cleveland Regional Transit Authority ("GCRTA")(collectively referred to as "defendants"). For the following reasons, we reverse and remand.

{¶3} A review of the record reveals the following facts: Allega and McTech*fn1 were hired by GCRTA to make improvements to GCRTA's bus routes, including repairs to city streets, curbing, and sidewalks in front of the Justice Center in Cleveland, Ohio. Throughout the construction work, large orange barrels were placed around the construction work zones to warn pedestrians of the potholes and excavation holes.

{¶4} On August 8, 2005, at approximately 4:20 p.m., Schrader, an employee at the Justice Center, was leaving work. Schrader was familiar with the construction zone on the southwest corner of Ontario Street and St. Clair Avenue, since she walks south on Ontario toward Tower City Center every day. As Schrader left the Justice Center and headed toward the intersection of Ontario Street and St. Clair Avenue, it was raining heavily, and Schrader observed that the orange barrels had been moved from the street to the sidewalk area behind the construction area. Assuming that the construction had concluded, that the perimeter had changed, or the excavation had been filled in, Schrader crossed the intersection at the southwest corner of Ontario Street and St. Clair Avenue, fell into an open excavation that was filled with dirty water, and sustained serious injuries.

{¶5} On August 8, 2007, Schrader filed an amended complaint in the Court of Common Pleas against the defendants alleging personal injury as a result of the fall.

{¶6} On January 8, 2008, McTech filed its motion for summary judgment. On January 31, 2008, Schrader filed her brief in opposition. On March 11, 2008, the trial court granted McTech's motion for summary judgment. On April 7, 2008, the trial court sua sponte granted summary judgment in favor of Allega and GCRTA finding that they were "in the same factual position as McTech."

{¶7} It is from this decision that Schrader now appeals and raises two assignments of error for our review.

{¶8} "I. The trial court erred in granting summary judgment against appellant in favor of defendant-appellee McTech Corporation, Inc. because the ruling was against the manifest weight of the evidence and the arguments presented in appellant's brief in opposition leaving genuine issues of material facts that must be considered by a jury or trier of the facts."

{¶9} In this assignment of error, Schrader claims that the trial court erred in granting summary judgment in favor of the defendants because genuine issues of material fact existed concerning her claim for personal injury.

{¶10} An appellate court reviews a trial court's grant of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 1996-Ohio-336. "De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine if as a matter of law no genuine issues exist for trial." Brewer v. Cleveland City Schools (1997), 122 Ohio App.3d 378, citing Dupler v. Mansfield Journal (1980), 64 Ohio St.2d 116, 119-120.

{ΒΆ11} Summary judgment is appropriate where it appears that: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly ...


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