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Kelly v. Drosos

Court of Appeals of Ohio, Eighth District

June 20, 2013

KEVIN KELLY PLAINTIFF-APPELLANT
v.
PERICLES DROSOS DEFENDANT-APPELLEE

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-757585

ATTORNEYS FOR APPELLANT Christian R. Patno Nicholas M. Dodosh Susan C. Stone McCarthy, Lebit, Crystal & Liffman

ATTORNEYS FOR APPELLEE Todd M. Haemmerle Jamie A. Price Gallager Sharp

BEFORE: Kilbane, J., Stewart, A.J., and Blackmon, J.

JOURNAL ENTRY AND OPINION

MARY EILEEN KILBANE, JUDGE

{¶ 1} Plaintiff-appellant, Kevin Kelly ("Kelly"), appeals from the order of the trial court that awarded summary judgment to defendant, Pericles Drosos ("Drosos"), in Kelly's action for injuries he sustained after he tripped and fell on a public sidewalk. For the following reasons, we reverse and remand for further proceedings consistent with this opinion.

{¶ 2} On September 7, 2009, Kelly exited Pug Mahones at 17621 Detroit Avenue, Lakewood. He tripped and fell, dislocating and fracturing his elbows. Kelly filed a complaint against Drosos, [1] owner of the building, alleging that the sidewalk and brick pavers in front of Pug Mahones had a defect, in excess of two inches, and that Drosos negligently failed to repair the defect, in violation of common law duties and Section 903.10 of the Lakewood Codified Ordinances.

{¶3} Drosos denied liability and moved for summary judgment on July 16, 2012, supported by the deposition testimony of Drosos, Kelly, and Lakewood Police Officer Donald Mladek ("Mladek"). In relevant part, Drosos presented evidence that Kelly was given permission to enter Pug Mahone's after closing so that he could use the restroom, that a police officer who arrived on the scene and spoke with Kelly detected a strong odor of alcohol, Kelly had slurred speech and bloodshot eyes, that Kelly stated that he didn't know what he had tripped on, and that Drosos had no prior notice of the defect and was not liable under Elkins v. Lakewood, 8th Dist. No. 73778, 1998 Ohio App. LEXIS 5585, at *2 (Nov. 25, 1998).

{¶ 4} In opposition, Kelly presented evidence that the area where he fell is a tripping hazard because there are missing and protruding brick pavers in excess of two inches. Kelly also presented an affidavit from the property manager of a nearby parcel who averred that the defect has existed for at least four years. Kelly also presented evidence that the location was dimly lit, and that Kelly was unaware of the defect as he exited Pug Mahones.

{¶ 5} On September 17, 2012, the trial court awarded Drosos summary judgment. In support of its decision, the court cited to this court's decision in Feorene v. Robert C. Barney, DVM, Inc., 8th Dist. No. 97753, 2012-Ohio-3461. In this case, the court applied Section 903.10 of the Lakewood Codified Ordinances and concluded that summary judgment was properly awarded to the defendant where the city did not cite the defendant for a defective sidewalk until after the incident at issue, the defect was two inches, and there was no evidence that the defendant affirmatively created or negligently maintained the defective sidewalk.

{¶ 6} Kelly now appeals, assigning the following errors for our review:

Assignment of Error 1

The trial court erred in not finding that Appellee was negligent per se for violating Lakewood Codified Ordinance Section 903.10 because Appellee knew or should have known that the sidewalk he was responsible for was defective ...


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