Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
R. Lucarelli Co., L.P.A., and Robert R. Lucarelli, for
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
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
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
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 ...