In the case of Boucher v. Cleveland, 2023-Ohio-1818, an appellate court held that the city may be liable for an injury caused to a pedestrian by a damaged utility-access port on a sidewalk when the maintenance of a sidewalk is a proprietary governmental function that serves as an exception to governmental immunity under R.C. 2744.02.
In this case, the pedestrian argued that (1) the city had knowledge of the damaged utility-access port and failed to adequately warn or protect against the hazard and (2) the work crew the city sent was not on the day the city claimed. In response, the city argued that (1) it is entitled to political subdivision immunity under R.C. 2744.02(A) and the pedestrian failed to produce sufficient evidence to show that any of the exceptions to immunity listed in R.C. 2744.02(B) applied and (2), even if one of the exceptions somehow applied, immunity was restored pursuant to R.C. 2744.03(A)(5) because the city sent a work crew to investigate the damaged utility-access port on the day before or the day the injury occurred. The appellate court agreed with the pedestrian.
In support of its decision in favor of the pedestrian, the appellate court explained that there was a material dispute about whether the work crew investigated the damaged utility-access port before or after the injury because “[the workers] did not have an independent memory of the date the hazardous condition was reported and could not recall the specific day of the week the work was performed, and therefore summary judgment was inappropriate.” 2023-Ohio-1818 at ¶ 41. The appellate court further explained that R.C. 2744.03(A)(5) does not protect against decisions that require little judgment or “decisions that involve inadvertence, inattention, or inobservance,” and instead requires “some positive exercise of judgment that portrays a considered adoption of a particular course of conduct in relation to an object to be achieved.” Id. at ¶ 46.
To read this case, click here.
NOTE: This case was decided procedurally on a motion for summary judgment. The final outcome of this case may be drastically different.
Authors: Matthew John Markling and the McGown & Markling Team.
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always-changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.