Summary
holding that, under R.C. 723.01, a city owed pedestrians a duty of ordinary care in maintaining a park strip that ran along the side of a street
Summary of this case from Stein v. City of OakwoodOpinion
No. 74-941
Decided December 17, 1975.
Municipal corporations — Negligence — Duty of pedestrian using park strip — R.C. 723.01 — Applicability — Summary judgment — Erroneously granted, when.
APPEAL from the Court of Appeals for Scioto County.
Plaintiff-appellant, Earl E. Joseph, instituted an action for damages for personal injuries against defendant-appellee, city of Portsmouth, in the Court of Common Pleas of Scioto County
Appellant, in his complaint, alleges:
"1. On October 16, 1969, at approximately 10:00 o'clock A.M., plaintiff was walking across a grassy area approximately three feet (3') wide located between the sidewalk and the street curbing on the north side of Tenth Street approximately thirty feet (30') east of the corner of Chillicothe Street and Tenth Street in the City of Portsmouth, Ohio.
"2. The defendant, The City of Portsmouth, Ohio * * * negligently caused and permitted an iron stake to be protruding from the ground, but obscured from view, approximately three inches (3") in height in the strip of land between the sidewalk and the curbing at the aforementioned location.
"3. The plaintiff tripped over said stake and sustained a bruised right hip; torn ligaments in the right leg; and an injury to the low back.
"4. As a result of such injuries, plaintiff has suffered pain and disability in the area of his right hip and leg and low back, all of which is permanent."
The defendant-city filed a motion for summary judgment, which the trial court granted. It was the conclusion of the trial court that "* * * the defendant is protected by governmental immunity with respect to negligence allegedly occurring in connection with the * * * `park strip,' i.e., the area between the sidewalk and the street. That area is not embraced within the provision of Sec. 723.01, R.C., and is not an area intended to be used for the purpose of travel."
Upon appeal, the Court of Appeals affirmed the judgment of the trial court, and the cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Kimble, Schapiro, Stevens, Harcha, Young Clark and Mr. Roger L. Clark, for appellant.
Mr. Edward V. Leach, city solicitor, for appellee.
R.C. 723.01 provides:
"Municipal corporations shall have special power to regulate the use of the streets. The legislative authority of such municipal corporation shall have the care, supervision, and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the municipal corporation, and shall cause them to be kept open, in repair, and free from nuisance."
The granting, by the trial court, of appellee's motion for summary judgment was predicated upon a conclusion that the park strip was not encompassed within the terms of R.C. 723.01 and was not an area intended to be used for travel.
The syllabus of Barnesville v. Ward (1911), 85 Ohio St. 1, reads:
"1. Where a street is sufficiently wide that enough will remain unobstructed for the purpose of public travel, a municipality may maintain or permit to be maintained, park strips between the curbing of the paved street and the pavement of the sidewalk in which strip grass, flowers and trees may be grown for the purpose of beautifying and ornamenting the streets of the city and contributing to the pleasure and comfort of its citizens, and may by proper barriers prevent travel thereon.
"2. The trees, grass and flowers growing thereon and proper barriers placed around the same to protect them, are not obstructions or nuisances within the meaning of the statute requiring the city council to keep the streets of a municipality open, in repair and free from nuisance.
"3. A city may not maintain or permit to be maintained, a fence, wire or other barrier around such park strips dangerous to the life or safety of any traveler who undertakes to pass over the same, and if a pedestrian in the exercise of due care for his own safety is injured by reason of the dangerous condition of such barrier the municipality is liable in damages for such injury if it knew, or in the exercise of ordinary care, ought to have known the dangerous condition thereof."
Although no specific numerical statutory references appear in the Barnesville case, the holding in that case is based upon a conclusion that "* * * park strips between the curbing of the paved street and the pavement of the sidewalk * * *" are within the ambit of the "statute requiring the city council to keep the streets of a municipality open, in repair and free from nuisance."
The fact that the obligations imposed upon a municipality by R.C. 723.01 apply to a park strip does not itself render a municipality liable for injuries sustained by a pedestrian using the park strip.
In Lovick v. Marion (1975), 43 Ohio St.2d 171, 172, which involved a fall into a "catch basin and sloping drain" adjacent to a street, it was noted that liability under R.C. 723.01 "is not imposed upon a municipality where the condition in question does not render a street unsafe for usual and ordinary modes of travel." Concluding that "* * * the catch basin and drainage slope were not part of the paved or traveled portion of the street; they did not render the street unsafe for customary vehicular or pedestrian travel and did not cause injury to a person using the street in an expected and ordinary manner," the court, in Lovick, found the defendant-city not liable.
From the foregoing, it is evident that there are triable issues to be determined in this cause, including findings as to the "conditions" allegedly causing the injury and whether appellant was using the park strip "in an expected and ordinary manner."
Inasmuch as there are genuine issues of material facts to be determined in this cause, the trial court erred in granting appellee's motion for summary judgment. Accordingly, the judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Common Pleas for further proceedings according to law.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.