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Bradshaw v. New Village Corp.

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 22, 2018

LAURA BRADSHAW, ET AL. PLAINTIFFS
v.
NEW VILLAGE CORPORATION DEFENDANT-APPELLEE [Appeal by City of Cleveland, Third-Party Defendant-Appellant]

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-866373

          ATTORNEYS FOR APPELLANT Barbara A. Langhenry Law Director City of Cleveland BY: Elizabeth M. Crook Assistant City Prosecutor.

          ATTORNEYS FOR APPELLEES For New Village Corporation Joseph A. Ferrante Nationwide Insurance Co. Lavell O. Payne Nationwide Insurance Co.

          For Laura L. Bradshaw John P. Goodrich.

          For Douglas Bradshaw Paul Grieco Adeladi Olufemi Williams Landskroner Grieco Merriman, L.L.C.

          BEFORE: E.T. Gallagher, J., E.A. Gallagher, A.J., and Boyle, J.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, Judge.

         {¶1} Defendant-appellant, city of Cleveland, appeals the denial of its motion to dismiss a third-party complaint filed against it by defendant-third-party plaintiff, New Village Corporation. The city raises one assignment of error:

The trial court erred in denying the city's motion to dismiss because there are no facts that would strip the city's immunity from New Village Corporation's third party complaint under R.C. 2744 et seq.

         {¶2} We find merit to the appeal and reverse the trial court's judgment.

         I. Facts and Procedural History

         {¶3} In April 2015, plaintiff-appellee, Linda Bradshaw, tripped and fell on a sidewalk outside a Family Dollar store on West 25th Street in Cleveland. Linda sustained multiple patella fractures in her left knee and was treated for injuries at MetroHealth Medical Center. She later underwent two knee surgeries as well as physical and occupational therapy to restore her knee function.

         {¶4} Linda and her husband, Douglas Bradshaw, subsequently filed a complaint against New Village and Family Dollar Stores of Ohio, alleging that they negligently failed to maintain the sidewalk in a safe condition and that their negligence proximately caused Linda's injuries. Douglas alleged a loss of consortium claim resulting from his wife's injuries. New Village filed a third-party complaint against Cleveland, alleging that Cleveland owed the Bradshaws a duty of care to maintain the public sidewalks in a safe condition and that Cleveland, not New Village, was liable for the Bradshaws' claims.

         {¶5} Cleveland filed a motion to dismiss the third-party complaint pursuant to Civ.R. 12(B)(6), arguing it was immune from liability under R.C. Chapter 2744, Ohio's Political Subdivision Tort Liability Act, because the maintenance of a public sidewalk is a governmental function. New Village opposed the motion, arguing that Cleveland was not entitled to immunity because Linda did not fall on a traditional sidewalk. New Village also asserted that even if Linda fell on a traditional sidewalk, Cleveland was not entitled to immunity because Cleveland voluntarily assumed liability when it enacted Cleveland Codified Ordinances ("C.C.O.") 173 pursuant to the "Home Rule ...


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