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Nicholas v. Lake County Juvenile Court

Court of Appeals of Ohio, Eleventh District

September 30, 2013

NORMA NICHOLAS, et al., Plaintiffs-Appellees,
v.
LAKE COUNTY JUVENILE COURT, Defendant, LAKE COUNTY, Defendant-Appellant.

Civil Appeal from the Lake County Court of Common Pleas, Case No. 11 CV 003182. Judgment: Affirmed.

William J. Novak and Scott D. Perlmuter, Novak Pavlik Deliberato, L.L.P., For Plaintiffs-Appellees.

Richard A. Williams and Susan S.R. Petro, For Defendant-Appellant.

OPINION

COLLEEN MARY OTOOLE, J.

(¶1} Appellant, Lake County, appeals from the December 4, 2012 judgment of the Lake County Court of Common Pleas, denying its motion for summary judgment on the basis of governmental immunity.

(¶2} On August 11, 2010, appellee Norma Nicholas, stepped off a sidewalk near the entrance to the Lake County Juvenile Court and suffered significant injuries. During a break in proceedings in which she was a potential witness, Mrs. Nicholas went outside with her daughter, daughter-in-law, and grandchildren to smoke a cigarette and call her husband, appellee Dana Nicholas. She was on a sidewalk at the top of a set of concrete steps going down to a lower parking lot, approximately 50 to 75 feet from the entrance to the building. After noticing her four-year-old granddaughter running toward the lower parking lot, Mrs. Nicholas pivoted right to call the child back. She stepped off the sidewalk with her left foot in order to run after her granddaughter. There was a drop off of more than one foot from the sidewalk to the ground which she did not notice, as the area was obscured by tall grass. Mrs. Nicholas's left foot dropped down and caught in the underside of the concrete sidewalk. She fell, fractured her left ankle, right humerus, and a rib. Mrs. Nicholas underwent surgery for her ankle and had an extended hospital stay.

(¶3} According to Charles Klco, a Lake County building and grounds department supervisor, it was foreseeable that someone could accidentally step off the side of the walkway into the area at issue. Mr. Klco stated in his deposition that "because [of] the washout, " rift-raft could be put in to "stop water from flowing underneath the concrete" and "preventing any further wash away from that area." Thus, after Mrs. Nicholas's fall and injury, Lake County repaired the area by laying stone. Mr. Klco termed this repair a "normal maintenance" issue.

(¶4} Thereafter, on November 29, 2011, the Nicholases filed a complaint for negligence against the Lake County Juvenile Court and Lake County.[1] The complaint alleged that a defective condition existed on the grounds of the Lake County Juvenile Court, which caused Mrs. Nicholas to fall and sustain severe and permanent physical injuries as well as pain and suffering. The complaint further alleged that Mr. Nicholas, as Norma's husband, suffered a loss of consortium and services as a result of his wife's injuries. The Lake County Juvenile Court and Lake County filed an answer on December 19, 2011.

(¶5} On July 12, 2012, Lake County filed a motion for summary judgment asserting, inter alia, that it was entitled to sovereign immunity pursuant to R.C. Chapter 2744. The Nicholases filed an opposition the following month, to which Lake County filed a reply in support of its motion for summary judgment.

(¶6} On December 4, 2012, the trial court denied Lake County's motion for summary judgment, holding that it was not entitled to sovereign immunity. Lake County filed a timely appeal asserting the following assignment of error:

(¶7} "The trial court erred in determining that Lake County was not entitled to summary judgment on the issue of sovereign immunity."

(¶8} Under its sole assignment, Lake County argues that the trial court erred in denying its motion for summary judgment and asserts the following issues: (1) the December 4, 2012 judgment is final and appealable as to the denial of statutory tort immunity under R.C. Chapter 2744; (2) construction and maintenance of courthouse grounds are governmental functions; (3) it is immune from liability because no exception to the general grant of immunity applies; (4) it is immune from liability because one or more of the R.C. 2744.03(A) defenses apply; and (5) the trial court relied on inapposite case law.

(¶9} "' Pursuant to Civ.R. 56(C), summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.' Holik v. Richards, 11th Dist. No. 2005-A-0006, 2006-Ohio-2644, ¶12, citing Dresher v. Burt, 75 Ohio St.3d 280, 293, * * * (1996). 'In addition, it must appear from the evidence and stipulations that reasonable minds can come to only one conclusion, which is adverse to the nonmoving party.' Id . citing Civ.R. 56(C). Further, the standard in which we review the granting of a motion for summary judgment is de novo. Id . citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, * * * (1996).

(¶10} "Accordingly, '(s)ummary judgment may not be granted until the moving party sufficiently demonstrates the absence of a genuine issue of material fact. The moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim.' Brunstetter v. Keating, 11th Dist. No. 2002-T-0057, 2003-Ohio-3270, ¶12, citing Dresher at 292. 'Once the moving party meets the initial burden, the nonmoving party must then set forth specific facts demonstrating that a genuine issue of material fact does exist that must be preserved ...


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