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Sonja M. Burgess v. Mark A. Johnson

October 10, 2011

SONJA M. BURGESS
PLAINTIFF-APPELLANT
v.
MARK A. JOHNSON, ET AL. DEFENDANTS-APPELLEES



Appeal from the Court of Common Pleas, Case No. 10-CVC-11-1671

The opinion of the court was delivered by: Farmer, J.

Cite as

Burgess v. Johnson,

JUDGES: Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J.

OPINION

CHARACTER OF PROCEEDING:

JUDGMENT: Affirmed

{¶1} On June 3, 2009, appellant, Sonja M. Burgess, was traversing the public sidewalk of South Franklin Street in Delaware, Ohio when she tripped over an uneven portion of the sidewalk and fell. Appellant did not see the unevenness prior to her fall because the gap between the two sections of concrete was overgrown with grass which obscured the difference in the grade between the two sections. Appellant sustained injuries as a result of the fall.

{¶2} On November 19, 2010, appellant filed a complaint against appellee, Mark

A. Johnson, the owner of the real property located at 228 South Franklin Street. Appellant alleged negligence in maintaining the sidewalk, and sought damages for her personal injuries.

{¶3} On January 31, 2011, appellee filed a motion for summary judgment. By judgment entry filed April 26, 2011, the trial court granted the motion, finding appellant did not establish any of the exceptions to the general rule that the duty to keep public sidewalks in repair and free from nuisance rests upon a municipality and not the abutting property owner.

{¶4} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:

I

{¶5} "THE TRIAL JUDGE ERRED, AS A MATTER OF LAW, BY GRANTING SUMMARY JUDGMENT AGAINST PLAINTIFF-APPELLANT."

{¶6} At the outset, we note this case comes to us on the accelerated calendar governed by App.R. 11.1, which states the following in pertinent part:

{¶7} "(E) Determination and judgment on appeal

{¶8} "The appeal will be determined as provided by App. R. 11.1. It shall be sufficient compliance with App. R. 12(A) for the statement of the reason for the court's decision as to each error to be in brief and conclusionary form.

{¶9} "The decision may be by judgment entry in which case it will not be published in any form."

I

{¶10} Appellant claims the trial court erred in granting summary judgment to appellee. We disagree.

{¶11} Summary Judgment motions are to be resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:

{ΒΆ12} "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 the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d ...


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