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Gilbert v. City of Cleveland

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 29, 2019

BELINDA GILBERT, Plaintiff-Appellant,
v.
CITY OF CLEVELAND, Defendant-Appellee.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-18-892645

         JUDGMENT AFFIRMED

          Robert R. Lucarelli Co., L.P.A., and Robert R. Lucarelli, for appellant.

          Barbara A. Langhenry, Cleveland Director of Law, and Elizabeth M. Crook, and Wesley M. Kretch, Assistant Directors of Law, for appellee.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, J.

         {¶ 1} Plaintiff-appellant, Belinda Gilbert, appeals the trial court's decision granting summary judgment in favor of defendant-appellee, the city of Cleveland. For the reasons that follow, we affirm the trial court's decision.

         {¶ 2} On July 18, 2014, Gilbert went to R.J. Taylor Park in Cleveland, Ohio to watch her sons play basketball. When she exited the vehicle she was riding in, she stepped onto the concrete walkway entrance of the park. She saw her sons and began waving at them. However, after taking four or five steps, she suddenly fell after stepping into a hole that was exposed in the concrete walkway - her entire leg was submerged into the hole. As a result, she suffered serious injury to her leg. Gilbert testified at deposition that she did not see the hole in the concrete walkway because she was looking ahead.

         {¶ 3} Gilbert's leg fell into a hole that was exposed when a city of Cleveland employee, in order to gain access inside the park with a large city vehicle, removed the wooden barrier or post from into the hole that was located in the middle of the walkway entrance. Gilbert testified that as she was receiving assistance with removing her leg from the hole, city of Cleveland employees approached her, apologized to her, and reinserted the removed wooden post. In addition to the wooden post in the middle of the walkway entrance, there were other posts along the entrance of the park; those posts were intact. The purpose of the wooden barriers or posts is to prevent vehicles from driving into the park area where pedestrians and users of the park may be present.

         {¶ 4} Gilbert's children who accessed the park earlier that day and in the same area as their mother, also testified at deposition. One of her sons testified that when he entered the park that morning, he noticed the wooden barrier was removed from the hole and he saw a city truck in the park.

         {¶ 5} Carlton Boone, an employee with the city of Cleveland for 27 years, testified at deposition that he did not recall working in the park on the day that Gilbert fell, but stated that the employees who mow the park would need to remove the barrier in the middle of the entranceway for the larger truck and trailer to gain access to the park. He stated that no policy or procedure exists whether the wooden barrier should be immediately reinserted into position after the city workers enter the park, but that the post should be reinserted when the workers leave the park.

         {¶ 6} In February 2018, Gilbert filed a complaint against the city for the injuries she sustained at the park. She claimed the "direct and proximate cause of the accident * * * was the recklessness, willfulness, wantonness, carelessness, maliciousness, intentional conduct and/or negligence of [the city]," and that based on this conduct, she suffered serious injury.

         {¶ 7} The city moved for summary judgment, contending that it is immune from liability based on R.C. Chapter 2744, Political Subdivision Tort Immunity, and R.C. 1533.181, the recreational-user statute.

         {¶ 8} The trial court granted the city's motion for summary judgment, finding that "the City is entitled to political subdivision immunity under R.C. 2744.02(A)(1) and none of the exceptions in R.C. 2744.02(B) apply. The City is also entitled to immunity under Ohio's recreational user statute, R.C. 1533.181."

         {¶ 9} Gilbert now appeals, raising as her sole assignment of error that the trial court erred when it granted the city's motion for summary judgment because the facts and circumstances of this ...


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