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Grady v. Karvo, Inc.

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 2, 2018

ANTHONY J. GRADY PLAINTIFF-APPELLANT
v.
KARVO, INC., ET AL. DEFENDANTS-APPELLEES

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-861060

          ATTORNEYS FOR APPELLANT Doron M. Kalir Kenneth J. Kowalski Cleveland Marshall College of Law Civil Litigation Clinic 2121 Euclid Avenue, LB 138 Cleveland, OH 44115

          ATTORNEYS FOR APPELLEES William M. Kovach Kathleen M. Guarente & Associates Park Center Plaza II, Suite 450 6150 Oak Tree Boulevard Independence, OH 44131

          Paul D. Eklund David Sherman Collins, Roche, Utley & Garner, L.L.C. 800 Westpoint Drive, Suite 1100 Cleveland, OH 44145

          BEFORE: Stewart, P.J., Boyle, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          MELODY J. STEWART, PRESIDING JUDGE

         {¶1} Plaintiff-appellant Anthony J. Grady appeals after the trial court granted summary judgment to codefendants-appellees Karvo Companies, Inc. and Trafftech, Inc. in a negligence action brought by Grady after he was injured following a trip and fall.

         {¶2} Trafftech entered into a subcontract with Karvo to install traffic control devices, pedestrian controls, and pedestrian lighting as part of a larger intersection and sidewalk reconstruction project for the city of Shaker Heights. This project occurred at the intersection of Warrensville Center Road and Chagrin Boulevard.

         {¶3} As part of the project, Trafftech installed "pull boxes" into the sidewalk at that intersection. In affidavits submitted with its motion for summary judgment, Trafftech explains that a pull box houses wires and controls for the lights at the intersection. When its lid is attached, a pull box is flush with the surface of the sidewalk. The lid is secured to the body of the pull box with bolts. The holes for the bolts are countersunk, such that the bolts are flush with the surface of the lid before they are tightened. After the bolts are tightened, they are sunk about 3/4 to an inch into the lid.

         {¶4} Approximately one month after Trafftech installed the pull boxes at the intersection, Grady was running to catch a bus. When he crossed over one of the pull boxes, he tripped on a bolt that protruded above the surface of the lid. Grady sustained injuries from his fall.

         {¶5} In his sole assignment of error, Grady argues that the trial court erred in granting the motion for summary judgment against him because a genuine issue of material fact exists. We find no error and affirm.

         {¶6} We review summary judgment rulings de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. Civ.R. 56 provides that a court may grant summary judgment when "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Summary judgment is appropriate where "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." Id.

         {¶7} The party seeking summary judgment bears the initial burden of identifying facts in the record showing it is entitled to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264. The moving party is not required to put this evidence on the record so long as the evidence is there. Id. at 293. If the moving party meets its initial burden, showing it is entitled to summary judgment, the burden then shifts to the nonmoving party to establish that there is evidence showing that summary judgment is inappropriate: "'[the nonmoving party] may not rest upon the mere allegations or denials of his pleadings, but his response * * * must set forth specific facts showing that there is a genuine issue for trial.'" Id. at 293, quoting Civ.R. 56(E). If the nonmoving party fails to establish this then summary judgment is appropriate. Id

         {¶8} Trafftech presented evidence establishing that when the pull box in question was installed a month earlier, the lid was secure and that none of the bolts were protruding. Trafftech also presented evidence that when a pull box lid is not secured, its bolts will nevertheless be flush with the surface. Additionally, in his answers to interrogatories, ...


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