[Cite as Evans v. Cincinnati,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

DEBORAH EVANS, : APPEAL NO. C-120726 TRIAL NO. A-1109253 and : O P I N I O N. TERRY EVANS, :

Plaintiffs-Appellees, :

vs. :

CITY OF CINCINNATI, :

Defendant-Appellant, :

and :

JOHN DOE, :

and :

ANTHEM, :

Defendants.

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: May 22, 2013

Law Offices of Blake Maislin, LLC, and T. Tod Mollaun, for Plaintiffs-Appellees,

John P. Curp, City Solicitor, and Joseph C. Neff, Assistant City Solicitor, for Defendant-Appellant.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

D E W INE , Judge.

{¶1} This is an appeal from a summary judgment in which the trial court

concluded that sovereign immunity did not apply to bar a claim against the city of

Cincinnati for an injury that occurred when plaintiff-appellee Deborah Evans tripped

on a broken-off signpost located on a city sidewalk. By statute, the maintenance,

repair and regulation of a sidewalk is a “governmental function” for which immunity

is conferred upon the city; the question presented by this case, however, is whether

this immunity extends to a broken signpost within a sidewalk. We conclude upon

the facts before us that it does, and, therefore, reverse the trial court’s denial of

summary judgment.

I.

{¶2} Ms. Evans tripped and fell while walking to a tailgate party before a

Cincinnati Bengals’ Monday Night Football game. She broke both of her elbows in

the fall. She blames the injury on her pants leg having gotten caught on a part of a

broken metal pole that was jutting out of the sidewalk.

{¶3} Ms. Evans and her husband filed a lawsuit against the city. In her

complaint, Ms. Evans alleged that the city was negligent in failing to maintain its

premises in a safe condition and in failing to warn her about the defects in or

dangerous condition of the sidewalk. The city filed a motion for summary judgment,

arguing that it was immune under R.C. Chapter 2744. The trial court denied the

summary judgment motion, noting only that it found there existed a genuine issue of

material fact. The city now appeals.

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{¶4} In its sole assignment of error, the city asserts that the trial court

erred when it failed to conclude that the city was entitled to immunity as a matter of

law.

II.

{¶5} The starting point for our discussion is R.C. Chapter 2744, which

establishes a three-tiered analysis for determining whether the city is entitled to

immunity. R.C. 2744.02(A)(1) confers immunity upon political subdivisions for

“injury * * * allegedly caused by any act or omission of the political subdivision or an

employee of the political subdivision in connection with a governmental or

proprietary function” unless one of the exceptions listed in R.C. 2744.02(B) applies.

If one of those exceptions applies, the city may assert one of the defenses listed in

R.C. 2744.03(A).

{¶6} The city argues that no exception removes the immunity conferred in

R.C. 2744.02(A)(1). The Evanses counter that R.C. 2744.02(B)(2) presents an

applicable exception because it provides that political subdivisions are liable for

injuries caused by the negligent performance of “proprietary functions” by their

employees.

{¶7} R.C. 2744.01(C)(2) provides a nonexhaustive list of functions that are

governmental. Included on the list is “[t]he regulation of the use of, and the

maintenance and repair of, roads, highways, streets, * * * [and] sidewalks[.]” R.C.

2744.01(C)(2)(e).

{¶8} To be considered “proprietary,” a function must be one not described

or listed in R.C. 2744.01(C) as governmental, and must both (1) “promote[] or

preserve[] the public peace, health, safety, or welfare[,] and (2) “involve[] activities

that are customarily engaged in by nongovernmental persons.” R.C. 2744.01(G)(1).

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R.C. 2744.01(G)(2) provides a nonexhaustive list of proprietary functions including

the operation of a hospital, cemetery, public utility, railroad, busline, sewer system,

public auditorium and parking facility.

{¶9} Here, the city asserts that it is entitled to immunity because the gist of

the Evanses’ complaint is that the city was negligent in the maintenance of sidewalks,

which is delineated as a governmental function. The city analogizes this case to

Burns v. Upper Arlington, 10th Dist. No. 06AP-680,

, which involved

an injury caused when the plaintiff tripped over a manhole cover located on a

sidewalk. There, the court concluded that the city of Upper Arlington was entitled to

immunity because the manhole was part of the sidewalk and “the conduct about

which [plaintiff] complain[ed] was the maintenance of a sidewalk, * * * not the

maintenance of a sewer.” Id. at ¶ 15.

{¶10} In contrast, the Evanses rely heavily on our conclusion in Avila v.

Cincinnati,

,

,

(1st Dist.), that

the city was not entitled to immunity for claims involving a car accident that

occurred due to the formation of ice on a road arising from a broken water line. In

reaching our decision, we relied on the fact that the plaintiffs’ allegations “did not

concern the city’s regulation, use, or repair of roadways [a governmental function],

but instead implicated the city’s maintenance of water lines [a proprietary function].”

Id. at ¶ 12.

{¶11} The Evanses argue that this case is not about the maintenance of the

sidewalk, but about the maintenance of the signpost, which they assert would fall

within the definition of proprietary functions. According to the Evanses, sign

maintenance is a proprietary function because public signs are placed for the safety

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of others and because signs “on streets, buildings, and billboards” are customarily

maintained by private persons.

{¶12} The problem with this argument, however, is that the statute in

question explicitly provides that to be proprietary, an activity must not be listed as

governmental. R.C. 2744.01(G)(1)(a). Sidewalk maintenance and regulation is

specifically listed as governmental. R.C. 2744.01(C)(1)(e). Here, the Evanses’

complaint is that the city failed in its duty to keep the sidewalk clear of a dangerous

obstruction. As in Burns, the conduct about which the Evanses complain—the

failure to keep the sidewalk free of obstructions like jagged signposts or manhole

covers—falls within the ambit of the city’s responsibilities in connection with

sidewalks.

{¶13} Even accepting the Evanses’ argument that private entities may

sometimes erect public signs—and there is no indication that this is what occurred in

the present case—the immunity in R.C. 2744.01(C)(2)(e) extends not only to

sidewalk “maintenance and repair” but also to the “regulation of the use” of a

sidewalk.1 Here the Evanses’ grievance is either that the city was negligent in the

“maintenance and repair” of the sidewalk by failing to keep it free from the jagged,

cut-off signpost, or that it was negligent in the “regulation of the use” of the sidewalk

by allowing the existence of the dangerous signpost. In either case, what is at issue is

a “governmental function,” and the city is entitled to immunity.

1 It is worth noting that the city maintains extensive regulations concerning the use of sidewalks, including the placement of signs and other obstructions on sidewalks. See generally Cincinnati Municipal Code Chapters 721, 722, and 723.

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III.

{¶14} We sustain the sole assignment of error, reverse the judgment of the

trial court, and remand the cause for entry of judgment for the city.

Judgment reversed and cause remanded.

D INKELACKER , P.J., and F ISCHER , J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

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