The facts giving rise to this appeal are as follows. On November 26, 1995, Sunday evening, Cynthia and Brian Sanders accompanied by two business associates, attended the Browns-Pittsburgh Steelers football game at the Cleveland Municipal Stadium. After the game, following a different route than when they arrived, while walking toward E. 9^th Street to their parked car, the group, carried along by the flow of pedestrians, walked across the E. 9^th Street westbound entrance ramp to Route 2. New guard rails were being installed along the paved roadway by Allega Contractors. The group progressed across the pavement onto the dirt construction area, where after a few steps, Cynthia stepped into a hole approximately knee deep and suffered a fractured tibia. On May 14, 1996, the Sanders initiated the within action wherein Cynthia asserted a claim of negligence against both Allega and the City of Cleveland for their creation of a nuisance, creation of a dangerous condition and their failure to provide adequate warnings. Brian claimed loss of consortium. The City of Cleveland brought a cross-claim against Allega for indemnification and/or contribution pursuant to R.C. 2307.31 and R.C. 2307.32.

On August 29, 1997, Allega and the City of Cleveland filed a joint motion requesting summary judgment. After briefing on the issues, on July 1, 1998 the trial court granted judgment in their favor citing without opinion: Jeffers v. Olexo; Posin v. ABC; andMenifee v. Ohio Welding. This appeal follows in which appellants advance a single assignment of error.

THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS-APPELLEES SUMMARY JUDGMENT ON ALL OF THE CLAIMS CONTAINED IN THE COMPLAINT.

This court reviews the lower court's grant of summary judgmentde novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704. An appellate court applies the same test as a trial court, which test is set forth in Civ.R. 56(C), which specifically provides that before summary judgment may be granted it must be determined that:

(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United Inc., (1977), 50 Ohio St.2d 317, 327.

Moreover, it is well-settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987),477 U.S. 317, 330; Dresher v. Burt (1996), 75 Ohio St.3d 280,293. Doubts must be resolved in favor of the nonmoving party.Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359.

In accordance with Civ.R. 56(E), "a nonmovant may not rest on the mere allegations or denials of his pleading but must set forth specific facts showing there is a genuine issue for trial."Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421,424. The nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial.Dresher, supra; Celotex, supra at 322.

With these standards in mind, we find that the trial court properly granted judgment in favor of the City of Cleveland.

The Political Subdivision Tort Liability Act sets forth a general grant of immunity to a political subdivision for injury or loss incurred from its acts and omissions, as well as those of its employees, through the exercise of any governmental or proprietary functions. R.C. 2744.02(A)(1). This subdivision of the statute, in pertinent part, provides:

[A] political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or a proprietary function.

R.C. 2744.01(C)(2)(e) specifically classifies the maintenance and repair of roads, highways, streets, and sidewalks as a governmental function. Accordingly, in the present case, the immunity extended to a political subdivision by R.C.2744.02(A)(1) operates to keep the City immune from claims based on any injury to person or property that resulted in connection with its performance of its governmental function of repairing and maintaining the roads unless its actions fall into one of the statutory exceptions to immunity enumerated in R.C. 2744.02(B). R.C. 2744.02(B) sets forth four exceptions to the immunity granted to a political subdivision in R.C. 2744.02(A)(1).

Appellants claim that the exception set forth in R.C.2744.02(B)(3) excepts the City from the general grant of governmental immunity on the basis that the unguarded deep holes created a qualified nuisance, citing Taylor v. Cincinnati (1944),143 Ohio St. 426.

R.C. 2744.02(B)(3), provides that, subject to certain defenses, a political subdivision will be liable for its "failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges * * * or public grounds within the political subdivision open, in repair, and free from nuisance."

We find Taylor to be distinguishable and find appellant's reliance on R.C. 2744.02(B)(3) in these circumstances to be misplaced. In Taylor the duty imposed upon the municipality was the exercise of ordinary care to keep its streets, sidewalk and other public areas open, in repair and free from nuisance. The "asserted qualified nuisance" was the existence of a tree, although lawfully within the ambit of the roadway, was in such close proximity to the paved portion of the highway as to create a nuisance. "The duty of the political subdivision to keep its right of way free from nuisance only exists to the extent that the condition on the right of way creates a nuisance on the adjacent street or sidewalk that renders ordinary travel thereon unsafe. See, e.g., Mfr's Natl. Bank v. Erie Cty. Rd. Comm. (1992), 63 Ohio St.3d 318, 587 N.E.2d 819, first paragraph of the syllabus (permanent visibility obstruction within highway right-of-way can be nuisance for which political subdivision may be liable under R.C. 2744.02(B)(3) when obstruction renders regularly traveled portions of highway unsafe for usual and ordinary course of travel); Dickerhoof v. City of Canton (1983),6 Ohio St.3d 128, 451 N.E.2d 1193, second paragraph of syllabus (municipal corporation may be held liable for injuries resulting from its failure to keep the shoulder of a highway in repair and free from nuisance where such defect renders the highway unsafe for normal travel); Palko v. City of Elyria (1993), 86 Ohio App.3d 211,620 N.E.2d 232 (three foot drop-off on public right-of-way was not a nuisance that municipality is responsible for where condition did not render travel on adjacent concrete sidewalk unsafe)." Shank v. City of Springfield (May 3, 1995), Clark App. No. 94-CA-71, unreported.

Here, the alleged nuisance was created on the unimproved portion of the vehicle entrance ramp to Route 2. The unimproved portion of the property was not intended for use by either vehicles or pedestrians. Thus, even where we view the evidence in a light most favorable to appellants, we cannot conclude that the exception to the immunity as set forth in R.C. 2744.02(B)(3) applies to this area alongside the roadway which is not included in the statute. Therefore, R.C. 2744.02(B)(3) does not obligate the City to keep this area free from nuisance. Shank, id. Accordingly, the exception does not apply here and we find appellee City of Cleveland is immune from suit pursuant to R.C.2744.02(A)(1) and is entitled to judgment as a matter of law.

Nonetheless, we find that summary judgment was improvidently granted to appellee Allega. In its motion for summary judgment, Allega argued that appellant was merely a trespasser and, as such, Allega only owed her the duty to refrain from wanton, wilful or reckless misconduct. We find Allega's assertions to be unpersuasive.

"Historically, a landowner's liability in tort is incident to the occupation or control of the land, which involves the owner's right and power to admit and exclude people from the premises.Wills v. Frank Hoover Supply (1986), 26 Ohio St.3d 186, 188, 26 OBR 160, 162, 497 N.E.2d 1118, 1120; Mitchell v. Cleveland Elec.Illum. Co. (1987), 30 Ohio St.3d 92, 94, 30 OBR 295, 297,507 N.E.2d 352, 354." However, an independent contractor who creates a dangerous condition on real property is not relieved of liability under the doctrine which exonerates an owner or occupier of land from the duty to warn those entering the property concerning open and obvious dangers on the property.Simmers v. Bentley Construction Co. (1992), 64 Ohio St.3d 642, syllabus.

In this case, Allega was an independent contractor who had no property interest in the premises and allegedly created a dangerous condition upon the City's property. Since Allega held no property interest in the premises, we must look to the law of negligence to determine Allega's duty of care. See Simmers,supra.

In order to sustain an action in negligence, a party must establish the three essential elements: duty, breach of the duty, and an injury proximately caused by the breach. Menifee v. OhioWelding Products, Inc. (1984), 15 Ohio St.3d 75. In order to defeat a motion for summary judgment brought in a negligence action, a plaintiff must identify a duty owed to him by the defendant. The evidence must be sufficient, when considered most favorably to the plaintiff, to allow reasonable minds to infer that the duty was breached, that the breach of that duty was the proximate cause of the plaintiff's injury and that the plaintiff was injured. Feichtner v. Cleveland (1995), 95 Ohio App.3d 388,394; Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19,22-23; see, also, Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103. The existence of a duty in a negligence action is a question of law for the court, and there is no express formula for determining whether a duty exists. Mussivand v. David (1989),45 Ohio St.3d 314, 318. The existence of a duty is fundamental to establishing actionable negligence, without which there is no legal liability. See Jeffers v. Olexo (1989), 43 Ohio St.3d 140,142; Feichtner, supra. When one fails to discharge an existing duty, there can be liability for negligence. Id.

Appellee Allega argued that it owed no duty to plaintiff because a reasonably prudent person would not anticipate that appellant would cross a highway ramp and walk in the dark through a construction site, thus rendering appellant's fall into the hole unforeseeable.

Whether a duty exists depends largely on the foreseeability of the injury to one in the plaintiff's position. Only when the injured person comes within the circle of those to whom injury may be reasonably anticipated does the defendant owe a duty of care. Gedeon v. East Ohio Gas Co. (1934), 128 Ohio St. 335, 338. "The law of foreseeability, as announced in Neff Lumber Co. v.First National Bank (1930), 122 Ohio St. 302, 309, 171 N.E. 327, and followed in Mudrich v. Standard Oil Co. (1950), 153 Ohio St. 31,39, 90 N.E.2d 859, is as follows: `* * * It is not necessary that the defendant should have anticipated the particular injury. It is sufficient that his act is likely to result in injury to someone.'" Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 287.

An injury is not actionable unless it could be foreseen or reasonably anticipated as the probable result of an act of negligence. Strother, supra. An act is foreseeable if a reasonably prudent person, under the same or similar circumstance, would have anticipated the injury to the plaintiff as a result of his actions. Commerce Industry Insurance, Co. v.City of Toledo (1989), 45 Ohio St.3d 96, 98; Jeffers supra at the syllabus; Reed v. Weber (1992), 83 Ohio App.3d 437, 441.

The question before the court is this: was the scenario leading to Cynthia Sanders injury foreseeable? If the scenario leading to her injury was reasonably foreseeable, then Allega owed her a duty, in addition to exercising ordinary care for her safety, to warn her of the presence of deep post holes.

Construing the facts most favorably for appellant, the non-moving party, we find that: 1) a reasonably prudent person could have foreseen the dangerousness of the deep post holes in a dark construction site; 2) a reasonably prudent person could have foreseen that pedestrians emerging from the adjacent Cleveland Municipal Stadium would traverse in large groups across the access ramps and walk across the bordering ground within the construction area; and 3) a reasonably prudent person could have foreseen that such pedestrian could be injured by stepping into unmarked deep holes concealed by both darkness and the crowded conditions. See Commerce Industry Ins. Co., supra at 98; Reed, supra at 441; Jeffers, supra at the syllabus. Therefore, because such injury was foreseeable, Allega owed appellant a duty.

Once the existence of duty is found, appellant must show that appellee breached the duty and the breach proximately caused her injury. Mussivand v. David, supra at 318. Appellant claims that Allega failed to adequately warn her of the latent dangers which they created. On the other hand, Allega argues that the voluntary step in the dark rule is evidence of contributory negligence as a matter of law; that it owed no duty because appellants' actions in crossing the state highway were in violation of city ordinances and state statutes which constitute negligence per se; that even if it owed appellant the duty of ordinary care, in this case the danger was so open and obvious that she should be expected to have discovered it and protected herself because the claimed hazard was not hidden from view or concealed; that the duty to warn exercised in ordinary care was demonstrated by their placement of orange construction barrels, thus, no liability exists on their part because notice of the condition was clearly given to her; and, that because appellant knew she was walking on muddy and uneven ground, she had equal or greater knowledge of the defect and is barred from recovery. In essence, Allega asserts that appellant's negligence entitles Allega to summary judgment. We do not agree.

Appellant's contributory negligence, if any, does not automatically bar recovery for damages directly and proximately caused by Allega's negligence. See R.C. 2315.19(A)(2). Under the comparative negligence statute, a plaintiff may recover where his contributory negligence is equal to or less than the combined negligence of all the defendants. R.C. 2315.19. As such, the level of contributory negligence of the injured party is a question for the jury unless the evidence is so compelling that reasonable minds can reach one conclusion. Simmers, supra;Borchers v. Winzeler Excavating Co. (1992), 83 Ohio App.3d 268,277-278.

From the record before us, reasonable minds could reach different conclusions as to whether Allega breached its duty to appellant; whether appellant was contributorily negligent; if found to be negligent, to what extent the negligence of Allega or appellant was the proximate cause of appellant's injuries and what percentage of the damages should be attributed to the respective parties.

Therefore, we reverse the trial court's entry of judgment in favor of Allega and remand the matter to the trial court because genuine issues of material fact remain.

Judgment affirmed in part, reversed in part and remanded.

This cause is affirmed in part, reversed in part and remanded for further proceedings consistent with the opinion herein.

It is, therefore, ordered that appellants and appellees equally share the costs herein.

It is ordered that a special mandate be sent to said court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

_____________________________ TIMOTHY E. McMONAGLE PRESIDING JUDGE

PATRICIA A. BLACKMON, J., CONCURS; and MICHAEL J. CORRIGAN, J., DISSENTS WITH DISSENTING OPINION.

I must respectfully dissent from the majority as I would affirm the trial court's grant of summary judgment in favor of appellee Anthony Allega Contractors, Inc., as well as the grant of summary judgment in favor of co-appellee City of Cleveland.

A review of the facts leads to the inescapable conclusion that, at the time of her accident, appellant Cynthia Ann Sanders was a trespasser. A sign was posted in the area where the accident occurred which read, "Pedestrians and Bicycles Prohibited." The area under repair was marked with bright orange construction barrels. Ms. Sanders herself testified that the area was completely dark and that she was only able to navigate the dirt terrain by watching her husband's back in front of her. The only duty owed by property owners to trespassers is to refrain from wanton, willful or reckless conduct. Gladon v. Regional TransitAuthority (1996), 75 Ohio St.3d 313 [75 Ohio St.3d 312], 317;Jeffers v. Olexo(1989), 43 Ohio St.3d 140, 539 N.E.2d 614.

In Simmers v. Bentley (1992), 64 Ohio St.3d 642, the Supreme Court differentiated between the duty owed by a property owner and the duty owed by an "independent contractor who creates a dangerous condition on real property" to warn invitees of open and obvious hazards. Id. at 645. The Simmers Court held that independent contractors had a duty to warn those entering the property of open and obvious dangers which were created by the independent contractor.¹ The majority opinion correctly recognizes that the existence of a duty on the part of Allega to warn the appellants of the presence of the hole depended upon the foreseeabilty of the injury. An injury is foreseeable where a defendant knew or should have known that its act was likely to result in harm to someone. Huston v. Konieczny (1990), 52 Ohio St.3d 214; Commerce Industry v. Toledo (1989), 45 Ohio St.3d 96.

It is not apparent to me from the record before this court that Allega knew, or should have known, that the appellants would traverse across a freeway entrance ramp in total darkness and step into a hole which had been dug for the purpose of replacing a guardrail. Additionally, the majority opinion seems to assume that there were no warnings in the area where the accident occurred. To the contrary, there was a sign posted which stated that pedestrian traffic was prohibited on the entrance ramp. Additionally, appellant Brian Sanders testified that he observed a number of orange construction barrels in the area where Ms. Sanders fell. Thus, even if the accident was foreseeable, appellee Allega fully complied with its duty to provide a warning of any dangerous condition.

The majority opinion states that the appellants were "carried along by a flow of pedestrians" across the entrance ramp to a major freeway and into the restricted area of the freeway where guardrails were being replaced. There is no evidence that the appellants took the shortcut across the highway entrance ramp involuntarily. The appellants admitted that they, and the rest of their group, took a different route (one that consisted of following the well-lit and paved sidewalks expressly provided for pedestrian traffic) on their way into the game. The mere fact that a large number of people also decided to trespass across a freeway to save a few minutes, does not change the legal status of the appellants, nor does it excuse their failure to use ordinary care to ensure their own safety.

I also am of the opinion that the appellants are barred from recovery by the "step in the dark" doctrine. During her deposition, Ms. Sanders testified as follows:

Q: Do you remember was the sun up or down at that point?

A: It was down. It was dark.

Q: It was dark out?

A: It was very dark.

Q: Had it completely set or was it dusk?

A: It was very dark.

Q: Was there any lighting where the accident occurred?

A: No.

Q: There were no street lights.

A: No.

* * *

Q: And did you take precautions for your own safety in terms of walking in the dark in an area that was unlit?

A: I just remember saying — I just said to my husband before I fell, it would be a shame if there were lights on we could see where we were going. I was paying attention to his back.

Q: Had you been paying attention to where you were walking would you have been able to avoid falling in the hole?

A: It was just too dark to see anything that if I was looking down at that time at the ground[.] I wouldn't have seen it.

Where darkness is a factor in an alleged negligence situation, it must be remembered that darkness itself constitutes a sign of danger and the person who disregards a dark condition does so at his or her own peril. Gabel v. Apcoa, Inc. (Oct. 21, 1999), Cuyahoga App. No. 74794, unreported; Schneider v. AssociatedEstates Realty (Mar. 4, 1999), Cuyahoga App. No. 73981, unreported. To this end, Ohio courts have adopted a step-in-the-dark rule which provides:

The step-in-the-dark rule, as enunciated by Ohio courts, holds generally that one who, from a lighted area, intentionally steps into total darkness, without knowledge, information, or investigation as to what the darkness might conceal, is guilty of contributory negligence as a matter of law. Flury v. Central Publishing House (1928), 118 Ohio St. 154, 160 N.E. 679; McKinley v. Niederst (1928), 118 Ohio St. 334, 160 N.E. 850: Gabel v. Apcoa, Inc., supra.

Posin v. A.B.C. Motor Court Hotel, Inc. (1976), 45 Ohio St.2d 271,276, 344 N.E.2d 334; see, also, Manofsky v. Goodyear Tireand Rubber Co. (1990), 69 Ohio App.3d 663, 666, 591 N.E.2d 752.

In Posin, supra, the Supreme Court stated further:

Where evidence is conflicting on the issue of contributory negligence or where a combination of circumstances exists requiring a determination as to the credibility of witnesses in order to deduce the true facts relative to the issue of contributory negligence, then no inference of a lack of ordinary care arises and the ultimate resolution of this issue is solely within the province of the jury. Rothfuss v. Hamilton Masonic Temple Co. (1973), 34 Ohio St.2d 176, 297 N.E.2d 105; Chardon Lakes Inn Co. v. MacBride (1937), 56 Ohio App. 40, 10 N.E.2d 9.

The step-in-the-dark rule merely raises an inference of the lack of prudence and ordinary care on the part of the plaintiff. If conflicting evidence exists as to the intentional nature of the step into the dark, the lighting conditions and degree of darkness, the nature and appearance of the premises, or other circumstances exist tending to disprove a voluntary, deliberate step into unknown darkness, then clearly an inference of contributory negligence does not arise. Evidence of this nature presents a factual question for determination by the jury. Rothfuss, supra, 34 Ohio St.2d 176, 297 N.E.2d 105; Painesville Utopia Theater Co. v. Lautermilch (1928), 118 Ohio St. 167, 160 N.E. 683; Chardon Lakes Inn Co., supra, 56 Ohio App. 40, 10 N.E.2d 9; Plotkin v. Meeks (1936), 131 Ohio St. 493, 3 N.E.2d 404.

I am not unmindful that principles of comparative negligence have superseded the doctrine of contributory negligence as an absolute bar to recovery under R.C. 2315.19. However, the advent of comparative negligence analysis does not necessarily preclude an award of summary judgment. Purpera v. Asamoto (June 22, 1995), Cuyahoga App. No. 67917, unreported. In Purpera, this court, citing Mitchell v. Ross (1984), 14 Ohio App.3d 75, which was a post-comparative negligence case, stated:

Summary judgment may be granted to defendants in a negligence suit where, after construing the undisputed evidence most strongly in favor of plaintiff, a reasonable person could only conclude that the contributory negligence of the plaintiff was greater than the combined negligence of the defendants.

The appellants admit that they were aware that there were well-lit sidewalks available for them to utilize in order to return to their parking lot, but that they, nonetheless, decided to take a shortcut across a busy freeway entrance ramp and an unlit construction area. Ms. Sanders stated in her deposition that the area where she fell was "just too dark to see anything." There is no question but that the injury sustained by Ms. Sanders would not have occurred if she had simply exercised ordinary and reasonable care in choosing her route back to the parking lot.

Clearly, the appellants' negligence as it relates to their own disregard for their personal safety, was greater than the negligence of Allega in failing to anticipate pedestrian traffic on a freeway. Thus, summary judgment was appropriately entered by the trial court because the contributory negligence of the plaintiffs was greater than the combined negligence of the defendants.

¹ The Simmers opinion did not specifically address the issue of duty owed by an independent contractor to a trespasser. The injured party in that case was a fourteen-year-old boy who was walking on a walkway on a railroad bridge that ran parallel to the tracks when he fell through a fifteen-and-a-half by four-foot hole in the walkway. It was undisputed in Simmers that the defendant was aware of the fact that the bridge was used by pedestrians, including children, on a regular basis, making the injury foreseeable. In this case there is no evidence which suggests that the appellee knew that the pedestrians regularly used the freeway entrance ramp as a walkway.