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In The Court Of Common Pleas, Delaware County, Ohio
Miles O’ Flaherty, et al., )
)
Plaintiffs, )
) Case No.: 16 CV C 09 0548
vs. )
) Judge Everett H. Krueger
City of Delaware, et al. )
)
Defendants. )
PLAINTIFFS’ MEMORANDUM CONTRA DEFENDANT’S
MoTION For SUMMARY JUDGMENT
Defendant’s sole, and erroneous, basis for its Motion is that it is statutorily immune via
§2744.01 from any possible liability to Plaintiffs. Defendant’s position is erroneous because it is not
supported by the express language of R.C. 2744.01(C)(2)(e). The Legislature, presumably, carefully
chose the language it included, or decided to not include, in the statute. There are several rationales
that support Plaintiffs’ position.
First, itis inarguable that the area wherein Plaintiff Miles O’Flaherty, a minor, was injured,
was neither “repaired” nor “maintained” prior to the occurrence of the injury. The statute doesnot
protect “nonrepair” or “nonmaintenance” of the sidewalk. Second, R.C. 2744.01(C)(2)(e) does
not address “upkeep” of the sidewalk. For these reasons statutory immunity, by the plain language
of the statute, does not protect Defendant and, thus, Defendant’s motion should be denied.
A. Facts
Since the entire basis for Defendant’s Motion is sovereign immunity, Plaintiffs do not
materially contest Defendant’s recitation of the facts. This includes Defendant’s admission of its
ownership of the sidewalk and its duties attendant thereto. Defendant’s Public Works department
“Common Pleas Court
Delaware County, Ohio
General Division
Tiled:
05/09/2017 07:23 AMperformed repairs on the sidewalk in October and December, 2015.' The sidewalks were constructed
between 2004-2006.’ The last official evaluation by Defendant of the area wherein Plaintiff was
injured occurred in 2009.’ From the time of construction in 2004-2006 up through the date Plaintiff
Miles O’Flaherty was injured, no repairs, maintenance, upkeep, modifications or any other work was
performed.’ Importantly, Defendant admits: “The City of Delaware, through its Public Works
Department and engineers/employees would have been responsible for the maintenance, repair and
upkeep of the sidewalk on Winter Street.>”
B. Law of Summary Judgment Motions
Pursuant to Civ.R. 56(C), summary judgment is proper if: (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., 50 Ohio
St.2d 317, 327, 364 N.E.2d 267 (1977). [*P9] HN2 The party moving for summary judgment bears
the initial burden of informing the trial court of the basis for the motion and pointing to parts of the
record that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280,
‘Exhibit. Defendant’s Supplemental Answers to Interrogatories #5. See also #12 and
referencing the area wherein Plaintiff was injured: “two sidewalk sections...had raised sections.
See also #14: The old concrete pads were removed and new concrete pads were poured...”
"Id.
"Id. #15.
“Id. #20.
51d. #6.
-2-292-293, 1996 Ohio 107, 662 N.E.2d 264 (1996). Specifically, the moving party must support the
motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id.
C. Law And Argument Regarding the Application of 2744.01(C)(2)
1. Law Of Sovereign Immunity
The Political Subdivision Tort Liability Actis codified in R.C. Chapter 2744 and was enacted
in response to the judicial abolishment of the common-law doctrine of sovereign immunity in cases
such as Haverlack ». Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 2 OBR 572, 442 N.E.2d 749, and
Enghauser Mfg. Co. v. Eriksson Eng, Ltd. (1983), 6 Ohio St.3d 31, 6 OBR 53, 451 N.E.2d 228. The
Actestablished statutory tortimmunity in some cases in which political subdivisions, including cities
and townships, may otherwise be sued in negligence. Haynes ». Franklin, 95 Ohio St.3d 344, 2002-
Ohio-2334, 767 N.E.2d 1146, at 19. As the Ohio Supreme Court explained in Colbert». Cleveland,
99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781: “determining whether a political subdivision
is immune from tort liability pursuant to R.C. Chapter 2744 involves a three-tiered analysis.”
The first tier under R.C. 2744.02(A)(1) is the general rule that a political subdivision is
immune from liability incurred in performing either a governmental function or proprietary function.
However, thatimmunity isnot absolute. The second tier of the analysis requires a court to determine
whether any of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the
political subdivision to liability. Ifany of the exceptions toimmunity in R.C. 2744.02(B) do apply and
no defense in that section protects the political subdivision from liability, then the third tier of the
analysis requires a court to determine whether any of the defenses in R.C. 2744.03 apply, thereby
providing the political subdivision a defense against liability.” Colbert at 7, 9 (internal citations
omitted.)2. R.C.2744.01(C)(2)
Defendant’s recitation of the language in the immunity statute is incomplete and out of
context. R.C. 2744.01 (C)(2) contains an exhaustive list of activities that qualify as a “governmental
function.” Some of these include:
(a) The provision or nonprovision of police, fire, emergency medical, ambulance, and
rescue services or protection; ...
(c) The provision of a system of public education;
(d) The provision of a free public library system;
(e) The regulation of the use of, and the maintenance and repair of, roads, highways, streets,
avenues, alleys, sidewalks, bridges, aqueducts, viaducts, and public grounds;
(g) The construction, reconstruction, repair, renovation, maintenance, and operation of
buildings that are used in connection with the performance of a governmental function,
including, but not limited to, office buildings and courthouses;
(h) The design, construction, reconstruction, renovation, repair, maintenance, and
operation of jails, places of juvenile detention, workhouses, or any other detention facility,
as defined in section 2921.01 of the Revised Code;
(i) The enforcement or nonperformance of any law;
Gj) The regulation of traffic, and the erection or nonerection of traffic signs, signals, or
control devices;
(1) The provision or nonprovision, planning or design, construction, or reconstruction of
a public improvement, including, but not limited to, a sewer system;
(p) The provision or nonprovision of inspection services of all types, including, but not
limited to, inspections in connection with building, zoning, sanitation, fire, plumbing, and
electrical codes, and the taking of actions in connection with those types of codes, including,
but not limited to, the approval of plans for the construction of buildings or structures and
the issuance or revocation of building permits or stop work orders in connection with
buildings or structures...
As can be seen, R.C. 2744.01(C)(2) deals with many different scenarios. Importantly, many
of the provisions cited above include both actions and failure to act as protected activities. The
subsection applicable to this case, referencing sidewalks, deals only with actions, not inactions.
The sidewalk section could have read, even though it does not, by example: “e) The
regulation of the use of, and the maintenance or nonmaintenance and repair or nonrepair
of...sidewalks.” This section does not address inactions although it clearly could have as evidenced
~4-by the many sections of 2744.01(C)(2) which contain clear references to “nonprovision,”
“nonperformance” and “nonerection.”
Further, nowhere does R.C. 2744.01 include the word “upkeep.” The City of Delaware,
through its Public Works Department and engineers/employees would have been responsible for the
maintenance, repair and upkeep of the sidewalk on Winter Street.’” It must be presumed that
Defendant chose its words carefully when responding to discovery. Defendant clearly recognizes,
that “maintenance” is not “repair” and that neither is “upkeep.”
3. Statutes Must Be Interpreted According to Their Unambiguous Plain Language
Only if the statute is ambiguous may a court consider sources outside of the plain language
of the statute.” In construing statutes, the court’s task is not to pick out one sentence and disassociate
itfrom the context. Rather, the courts construe statutes as a whole and based on how one would have
reasonably understood the text at the time it was enacted. Hauser v. City of Dayton Police Dep't,
2014-Ohio-3636, J 1, 140 Ohio St. 3d 268, 268, 17 N.E.3d 554, 555.
Here, the statute is unambiguous. Regarding sidewalks, no repair or maintenance was done
until after the minor Plaintiff was injured. Further, there was no upkeep for the sidewalk area and,
even if there was, such is not subject to immunity protection. Finally, the statutory language
applicable to sidewalks could, clearly, have addressed not only actions but also inactions but failed
to do so.
D. Conclusion
51d. #6.
7149 Determining legislative intent. Ifa statute is ambiguous, the court, in determining
the intention of the legislature, may consider ... other matters...”
5-‘The immunity defense does not apply to this cause. Defendant admits it did no repairs or
maintenance from, at least, 2006 up through the date that Miles O” Flaherty was injured. The
express language of the statute applies to “repairs” and “maintenance” but does not include lack
of same within the purview ofits protection. Clearly, the statute expressly includes many protections
forinactions and the failure to so include with regard to sidewalks is determinative. Should someone
be injured due to maintenance or repairs that actually occurred, such as in October and December,
2015, then immunity would apply. However, where the City did nothing, immunity, at least as it
applies to sidewalks, does not apply.
The City also admits that it is responsible for the “upkeep” of sidewalks. Nowhere in the
applicable section does the word “upkeep” appear. Thus, there is no immunity for upkeep.
Applying the law to this cause, Defendant’s Motion For Summary Judgment should be
denied.
/s/ David A. Bressman
David A. Bressman (0047128)
Law OFFICE oF Davip A. BRESSMAN
5186 Paul G. Blazer Parkway
Dublin, Ohio 43017
(614)538-1116
Fax: (614)761-8399
David@Bressmanlaw.com
Attorney for Plaintiffs
CERTIFICATE OF SERVICE
This is to certify that the foregoing was served upon:
-6-Michael L. Morgan Lance K. Oliver
Law Offices of Jerry S. Eisenberg Lawrence & Russell
P.O. Box 36538 5178 Wheelis Drive
Canton, Ohio 44735 Memphis, TN 38117
Attorney for Defendant City of Delaware Attorney for Defendant Anthem
by email or U.S. mail, postage prepaid on May 9, 2017.
David A. Bressman
David A. Bressman (0047128)IN THE COURT OF COMMON PLEAS
DELAWARE COUNTY, OHIO
Miles O’Flaherty, et al. CASE NO.: .16 CV C 09 0548
Plaintiffs, JUDGE: Everett H. Krueger
“Vs-
DEFENDANT’S SUPPLEMENTAL
. RESPONSES TO INTERROGATORIES
City of Delaware, et al.,
Defendants.
(Jury Demand Endorsed Hereon)DEFENDANT’S SUPPLEMENTAL RESPONSES. TO INTERROGATORIES
COMES NOW Defendant City of Delaware (hereinafter “Defendant”), by and through its
counsel, and for its supplemental responses to Plaintiffs’ Interrogatories states as follows:
Plaintiffs have now identified the loss location as occurring on @ sidewalk on Winter Street and
a completely different location than as alleged in the Complaint. Defendant supplements its
responses as to the incident occurring on Winter Street. However, Plaintiffs have never amended
their Complaint to change the location of the loss.
1. With regard to the Incident referenced in Plaintiffs’ complaint, state whether YOU
contend that any negligence on the part of the Plaintiff Miles O’Flaherty, or anyone not
presently a party, contributed to the happening of the Incident. For anyone or any entity
referenced herein, state the name, last known address, last known phone number for same
and such person or entity’s alleged negligence.
#1; Miles O'Flaherty was negligent in operating his bicycle over an open and obvious defect on
acity sidewalk. He was a contributing factor.
2. IDENTIFY anyone who claims to have witnessed the Incident or to have been at the
scene within 30 minutes prior or within 60 minutes after the Incident.
#2, City employees Cathy Johnson and Sgt. Shawn Snead were believed to be on the scene
within 60 minutes.
3. State whether, in the 5 years prior to the Incident, YOU were aware of any other
Incidents [including involving but not limited to: accidents, claims of injuries, slips, trips,
stumbles, falls or similar actions] on or near the accident scene. If so, please state:
1 Whether YOU provided any warnings subsequent to such Incident about the
condition prior to Plaintiffs’ Incident;
2. The wording of any warning YOU gave;
3. IDENTIFY each PERSON who participated in drafting the wording of any
warning;
4. The means by which any warning was transmitted to the generally expected users
of the area in which the Incident occurred;5. Whether any incident, or similar, report was generated to document such claims;
and,
6. IDENTIFY any person who was involved either in the Incident itself or in the
investigation of including the approximate date of same.
#3, Defendant states that it is not aware of any prior accidents, claims of injuries, slips, trips,
stumbles, fall or similar actions on the sidewalks of Winter Street in the five years prior to
August 5, 2015.
4, Do YOU contend that the condition at the accident scene which caused or contributed to
the cause of the Incident was so open and obvious that no warning thereof was required?
If so, please state the fact or facts upon which you base the contention that the condition.
was both “OPEN” and “OBVIOUS.”
#4. The raised sidewalk depicted in the photographs of such provided by Plaintiffs in discovery
appears to depict a defect so open and obvious that no waming thereof was required.
5. Regarding the accident scene, state the following:
lL What governmental [city, state, federal or other] guidelines, if any, were followed
in constructing, maintaining or repairing [including upkeep] same;
2. The name(s] of person, persons or entities who constructed or performed any
work upon such area;
3. The date that such area was originally constructed; and
4, The date[s] that such area was modified and the modification performed on such
dates].
5. What governmental, including but not limited to, City and State codes apply to
the area of the accident scene.
#5. City guidelines would have been followed as to the repair and maintenance of the sidewalk
on Winter Street. Municipal Code Chapter 909 would have imposed responsibility for the
maintenance of the sidewalk upon Defendant. Sidewalks, curbing and handicap ramps are
designed and constructed in conformance with the current City Design and Construction
Specifications as authorized under section 903.01 of the Municipal Code and in conformance
with applicable federal ADA requirements. Defendant’s Public Works department would have
performed repairs on the sidewalk. Repairs were performed in October, 2015 and December,
2015. The sidewalks were constructed as a part of the downtown Streetscape project and werepart of phase 3 between 2004-2006. Please see the produced Record Drawings from Ralph and
Curl Engineers.
6. Please IDENTIFY each PERSON or, if more appropriate, ENTITY who was responsible
for the maintenance, repair [including upkeep] of the PREMISES on of the date of the
Incident.
#6, The City of Delaware, through its Public Works Department and engineers/employces
would have been responsible for the maintenance, repair and upkeep of the sidewalk on Winter
Street,
2 Was an incident report, or similarly titled document, generated as a result of the Incident?
If so, please IDENTIFY the current custodian of such report.
#7. Yes. Defendant.
8. State whether, on the date of the incident, whether the accident scene was the subject of
any surveillance, video or otherwise, If the answer is in the affirmative, please
IDENTIFY the present custodian of same.
#8. The video or surveillance of the sidewalk of Winter Street at the time of the loss (but that did
not depict the area of the loss or the loss itself) was produced to Plaintiffs pre-suit pursuant to a
records request and is in the possession of Plaintiffs and produced by Plaintiffs in discovery. It is
the same video.
9. In the area where the Incident occurred, within 100 feet in any direction on the sidewalk,
identify any and all warnings regarding the area where the Incident occurred that were
displayed by YOU designed for the viewing of your business invitees.
#9, There were no warnings posted regarding the sidewalks on Winter Street on August 5, 2015.
10. With regard to your Answer to Plaintiffs’ complaint; please state the fact, or facts, upon
which you based the following Affirmative Defenses [Note: Civ.R. 26(B)(1) states:
“Parties may obtain discovery regarding any matter, not privileged, which is relevant to
the subject matter involved in the pending action, whether it relates to the claim or
defense of the party seeking discovery or to the claim or defense of any other party..."
Emphasis added]13,
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#10. It is believed that Defendant provided this information in response to Plaintiffs’ request for
the same information as to the same paragraphs/defenses in relation to supplemental responses to
Requests for Admissions, Defendant incorporates those responses by reference.
11. | With regard to your Answer to Plaintiffs’ complaint; please state the person, or persons,
whom you reasonably expect to testify in support of the following affirmative defenses
[Note: Civ.R. 26(B)(1) states: “Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending action, whether
it relates to the cfaim or defense of the party seeking discovery or to the claim or defense
of any other party..." Emphasis added]
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#11. It is believed that Defendant provided this information in response to Plaintiffs’ request for
the same information as to the same paragraphs/defenses in relation to supplemental responses to
Requests for Admissions. Defendant incorporates those responses by reference.
12. State YOUR knowledge of any condition that existed at the accident scene which could
cause an incident similar to that which occurred involving Plaintiff Miles O’ Flaherty.
Further, set forth:The date YOU acquired that knowledge;
2, IDENTIFY each PERSON who made the existence of the condition known to
YOU;
3. Set forth what knowledge YOU had;
4. Set forth whether any remedial or corrective action was taken upon the acquisition
of that knowledge,
5. IDENTIFY each PERSON who took any remedial and/or corrective action; and
6. Set forth the date that any corrective action was taken.
#12. As to Winter Street, on April 21, 2015, repairs were scheduled for a portion of the sidewalk
at an approach to the Justice Center off Winter Street. This was due to a report made by police
officer Brenda Wadsworth. Public works employee Fred Crist inspected the sidewalk and
determined repairs would be needed. Fred Crist did not note any needs for repairs on any other
portion of the sidewalks on Winter Street including where Plaintiff indicates he encountered a
raised area of sidewalk. During prep for the approach repair on or about October 25, 2015 and
after the loss, it was noted that there were two sidewalk sections west of the approach that had
raised sections. Public Works employee Fred Crist made such notations. Those sections were
also replaced when the approach was repaired on October 27, 2015. Public Works Employee
Charlie Smith made the repairs. Prior to October 25, 2015, the defect was first documented in
the incident report related to the loss. If any City employees walked on that portion of the
sidewalk in the weeks or months prior to the incident and noted the raised sidewalk, there could
be constructive knowledge of such but no defect or complaint was ever reported by any person
before the loss.
13. Please identify any DOCUMENT, and the present custodian of same, which references
the construction, maintenance, repair (including upkeep] or the like regarding the area
where the Incident occurred.
#13. Defendant produces documents regarding the design and repair of the sidewalk — Record
Drawings and repair orders.
14. State whether YOU made any repair [including upkeep], correction, modification,
alternation or the like to the area where the Incident occurred following the Incident. If
yes, please set forth:
The nature of the repair, correction, modification, alternation...,
The date that the repair or correction repair, correction, modification, alternation...
was accomplished, and
3. IDENTIFY each PERSON or BUSINESS who participated in the repair,
correction, modification, alternation or the like.
Ne
#14. The old concrete pads were removed and new concrete pads were poured on
October 27, 2015 by Public Works employee Charlie Smith. Public Worksemployee Fred Crist was the supervisor on the job.
1. Was there any procedure or program for the inspection of the accident scene prior to the
Incident. If yes, please set forth:
1. A general description of each procedure or program;
2. IDENTIFY each PERSON charged with the responsibility for implementing each
procedure;
3. Please set forth the regularity with which each procedure or program was to be
implemented;
4. Please state whether the procedure and/or program was reduced to a WRITING;
5 Please set forth whether the procedure or program was followed on the date of the
Incident; and
6. Whether there existed, pursuant to each procedure or program, a methodology by
which the findings of each inspection would be reduced to a WRITING.
#15, The sidewalks on Winter Street were evaluated in 2009 as a part of the “Safe Walks
Program” and no deficiencies were noted at that time and therefore no paperwork or report was
generated. The program is a sidewalk improvement initiative to provide safe pedestrian routes
and has been in place since 2007, In 2006, City Council passed an ordinance instructing city
departments to undertake a comprehensive sidewalk inspection and repair program. Depending
upon the location of the sidewalk, the responsibility of the maintenance and repair as to any
deficiencies would fall upon Defendant or the adjacent property owner. The program has a
revolving inspection schedule ~ initially from 2007-2017 with specific zones to be inspected
each year. The program was being followed on the date of the incident.
16. Please state whether YOU transmitted any warning to Plaintiff Miles O’Flaherty in
regard to his use of the accident scene prior to the Incident. If yes, please set forth:
1 The PERSON who gave the warning,
2. The exact words used in the warning,
3. Each PERSON who was a witness to the transmission of any warning?#16. Defendant never transmitted a warning to Miles O’Flaherty regarding the use of any
sidewalk.
17, Identify any lay or expert witnesses you anticipate calling during the pendency of this
lawsuit including, but not limited to, the trial of this action and any dispositive motion,
indicating each person’s contact information and expected testimony.
#17, Jackie M. Walker, Assistant City Manager: Fred Crist, employee, Public Works
Department; Charlie Smith, employee, Public Works Department; Cathy Johnson, employee,
Parking; Sgt. Shawn Snead, employee, Police Department; Marion Stephens, employee,
Engineering Technician, City of Delaware Public Works Department — Division of Traffic &
Engineering Services. All the individuals are still employed with Defendant and can be reached
through defense counsel. Ms, Walker, Mr. Crist, Mr. Smith and Mr. Stephens know about the
repair to the sidewalk after the defect was noted in October, 2015. Mr. Crist knows about not
noticing the defect in April, 2015 when he inspected another portion of the sidewalk. Ms. Walker
has general information about the city and its ordinances. Mr. Stephens knows about the “Safe
Walks Program” and last inspection of the sidewalk pursuant to that program. Ms. Johnson was
first on the scene after the incident and Sgt. Snead responded to the scene after the incident. It
is expected that Plaintiffs may be called upon cross-examination.
18. Identify any and all exhibits, demonstrative or otherwise, that you reasonably anticipate
using at the trial of this action or in support of any motion or during any deposition.
#18, Photographs taken of Winter Street before and after the loss and as produced by Plaintiffs
in discovery. The minor’s medical records and medical bills - inclusive of documentation of
insurance payments as to said medical bills. Photographs taken of the subject sidewalk after suit
was filed. Documents regarding repairs to the sidewalk. All are in possession of Plaintiffs or are
produced.
19. Please state whether, within the 5 years immediately preceding the Incident, YOU
received any notice that the accident scene violated any applicable safety code [including,
but not limited to building, fire, health code, etc.]? If yes, set forth
1. The date YOU received that notice,
2. Set forth the name of the public agency that issued the notice,
3. Set forth the date that the notice was issued,Set forth the contents of the notice,
Set forth whether any remedial or corrective measures were undertaken upon the
acquisition of the notice,
6. IDENTIFY any PERSON who took remedial or corrective measures.
ae
#19. In the five years before August 5, 2015, Defendant never received notice that any sidewalk
on Winter Street violated any applicable safety code.
20. To the extent not already identified above state, for the 10 years prior to the Incident, all
Tepairs, maintenance, modification or other work performed at the accident scene.
#20. None from the time of construction through the date of loss.
21. — To the extent not already identified above state, for the 10 years prior to the Incident, all
repairs, maintenance, modification or other work scheduled to be performed at the
accident scene but, as of the date of the Incident, unperformed.
#21, None as to the sidewalks on Winter Street.
22. To the extent not already identified above state, for the time period after the Incident, all
repairs, maintenance, modification or other work performed at the accident scene,
#22. Other than as indicated above, paver bricks were repaired near a utility pole on the north
side of the library of Winter Street.
Respectfully submitted and as to all objections:
Michael L. Morgan (0087565)CERTIFICATE OF SERVICE
Thereby certify that a copy of the foregoing Supplemental Responses to Interrogatories was
sent by regular U.S. Mail, postage prepaid, on this__ day of March, 2017 to:
David A. Bressman
5186 Paul G. Blazer Parkway
Dublin, OH 43017
Laurence K. Oliver
Lawrence & Russell
5178 Wheelis Drive
Memphis, TN 38117
Respectfully submitted,
MICHAEL L. MORGAN, ESQ, (0087565)
OF: LAW OFFICES OF JERRY S.
EISENBERG
Ohio Mailing Address:
P.O. Box 36538
Canton, OH 44735
330-415-8890 Phone
855-515-8236 Facsimile
Michael, Morgan@selective.comAFFIDAVIT
STATEOF |
COUNTY orf C
Iniacrc\ wel) vw et (ev being first duly sworn and advised, do hereby swear and
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affirm that the above responses to admissions are true and accurate to the best of my knowledge
and belief.
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Preview
In The Court Of Common Pleas, Delaware County, Ohio Miles O’ Flaherty, et al., ) ) Plaintiffs, ) ) Case No.: 16 CV C 09 0548 vs. ) ) Judge Everett H. Krueger City of Delaware, et al. ) ) Defendants. ) PLAINTIFFS’ MEMORANDUM CONTRA DEFENDANT’S MoTION For SUMMARY JUDGMENT Defendant’s sole, and erroneous, basis for its Motion is that it is statutorily immune via §2744.01 from any possible liability to Plaintiffs. Defendant’s position is erroneous because it is not supported by the express language of R.C. 2744.01(C)(2)(e). The Legislature, presumably, carefully chose the language it included, or decided to not include, in the statute. There are several rationales that support Plaintiffs’ position. First, itis inarguable that the area wherein Plaintiff Miles O’Flaherty, a minor, was injured, was neither “repaired” nor “maintained” prior to the occurrence of the injury. The statute doesnot protect “nonrepair” or “nonmaintenance” of the sidewalk. Second, R.C. 2744.01(C)(2)(e) does not address “upkeep” of the sidewalk. For these reasons statutory immunity, by the plain language of the statute, does not protect Defendant and, thus, Defendant’s motion should be denied. A. Facts Since the entire basis for Defendant’s Motion is sovereign immunity, Plaintiffs do not materially contest Defendant’s recitation of the facts. This includes Defendant’s admission of its ownership of the sidewalk and its duties attendant thereto. Defendant’s Public Works department “Common Pleas Court Delaware County, Ohio General Division Tiled: 05/09/2017 07:23 AMperformed repairs on the sidewalk in October and December, 2015.' The sidewalks were constructed between 2004-2006.’ The last official evaluation by Defendant of the area wherein Plaintiff was injured occurred in 2009.’ From the time of construction in 2004-2006 up through the date Plaintiff Miles O’Flaherty was injured, no repairs, maintenance, upkeep, modifications or any other work was performed.’ Importantly, Defendant admits: “The City of Delaware, through its Public Works Department and engineers/employees would have been responsible for the maintenance, repair and upkeep of the sidewalk on Winter Street.>” B. Law of Summary Judgment Motions Pursuant to Civ.R. 56(C), summary judgment is proper if: (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., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). [*P9] HN2 The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, ‘Exhibit. Defendant’s Supplemental Answers to Interrogatories #5. See also #12 and referencing the area wherein Plaintiff was injured: “two sidewalk sections...had raised sections. See also #14: The old concrete pads were removed and new concrete pads were poured...” "Id. "Id. #15. “Id. #20. 51d. #6. -2-292-293, 1996 Ohio 107, 662 N.E.2d 264 (1996). Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id. C. Law And Argument Regarding the Application of 2744.01(C)(2) 1. Law Of Sovereign Immunity The Political Subdivision Tort Liability Actis codified in R.C. Chapter 2744 and was enacted in response to the judicial abolishment of the common-law doctrine of sovereign immunity in cases such as Haverlack ». Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 2 OBR 572, 442 N.E.2d 749, and Enghauser Mfg. Co. v. Eriksson Eng, Ltd. (1983), 6 Ohio St.3d 31, 6 OBR 53, 451 N.E.2d 228. The Actestablished statutory tortimmunity in some cases in which political subdivisions, including cities and townships, may otherwise be sued in negligence. Haynes ». Franklin, 95 Ohio St.3d 344, 2002- Ohio-2334, 767 N.E.2d 1146, at 19. As the Ohio Supreme Court explained in Colbert». Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781: “determining whether a political subdivision is immune from tort liability pursuant to R.C. Chapter 2744 involves a three-tiered analysis.” The first tier under R.C. 2744.02(A)(1) is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or proprietary function. However, thatimmunity isnot absolute. The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political subdivision to liability. Ifany of the exceptions toimmunity in R.C. 2744.02(B) do apply and no defense in that section protects the political subdivision from liability, then the third tier of the analysis requires a court to determine whether any of the defenses in R.C. 2744.03 apply, thereby providing the political subdivision a defense against liability.” Colbert at 7, 9 (internal citations omitted.)2. R.C.2744.01(C)(2) Defendant’s recitation of the language in the immunity statute is incomplete and out of context. R.C. 2744.01 (C)(2) contains an exhaustive list of activities that qualify as a “governmental function.” Some of these include: (a) The provision or nonprovision of police, fire, emergency medical, ambulance, and rescue services or protection; ... (c) The provision of a system of public education; (d) The provision of a free public library system; (e) The regulation of the use of, and the maintenance and repair of, roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, and public grounds; (g) The construction, reconstruction, repair, renovation, maintenance, and operation of buildings that are used in connection with the performance of a governmental function, including, but not limited to, office buildings and courthouses; (h) The design, construction, reconstruction, renovation, repair, maintenance, and operation of jails, places of juvenile detention, workhouses, or any other detention facility, as defined in section 2921.01 of the Revised Code; (i) The enforcement or nonperformance of any law; Gj) The regulation of traffic, and the erection or nonerection of traffic signs, signals, or control devices; (1) The provision or nonprovision, planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system; (p) The provision or nonprovision of inspection services of all types, including, but not limited to, inspections in connection with building, zoning, sanitation, fire, plumbing, and electrical codes, and the taking of actions in connection with those types of codes, including, but not limited to, the approval of plans for the construction of buildings or structures and the issuance or revocation of building permits or stop work orders in connection with buildings or structures... As can be seen, R.C. 2744.01(C)(2) deals with many different scenarios. Importantly, many of the provisions cited above include both actions and failure to act as protected activities. The subsection applicable to this case, referencing sidewalks, deals only with actions, not inactions. The sidewalk section could have read, even though it does not, by example: “e) The regulation of the use of, and the maintenance or nonmaintenance and repair or nonrepair of...sidewalks.” This section does not address inactions although it clearly could have as evidenced ~4-by the many sections of 2744.01(C)(2) which contain clear references to “nonprovision,” “nonperformance” and “nonerection.” Further, nowhere does R.C. 2744.01 include the word “upkeep.” The City of Delaware, through its Public Works Department and engineers/employees would have been responsible for the maintenance, repair and upkeep of the sidewalk on Winter Street.’” It must be presumed that Defendant chose its words carefully when responding to discovery. Defendant clearly recognizes, that “maintenance” is not “repair” and that neither is “upkeep.” 3. Statutes Must Be Interpreted According to Their Unambiguous Plain Language Only if the statute is ambiguous may a court consider sources outside of the plain language of the statute.” In construing statutes, the court’s task is not to pick out one sentence and disassociate itfrom the context. Rather, the courts construe statutes as a whole and based on how one would have reasonably understood the text at the time it was enacted. Hauser v. City of Dayton Police Dep't, 2014-Ohio-3636, J 1, 140 Ohio St. 3d 268, 268, 17 N.E.3d 554, 555. Here, the statute is unambiguous. Regarding sidewalks, no repair or maintenance was done until after the minor Plaintiff was injured. Further, there was no upkeep for the sidewalk area and, even if there was, such is not subject to immunity protection. Finally, the statutory language applicable to sidewalks could, clearly, have addressed not only actions but also inactions but failed to do so. D. Conclusion 51d. #6. 7149 Determining legislative intent. Ifa statute is ambiguous, the court, in determining the intention of the legislature, may consider ... other matters...” 5-‘The immunity defense does not apply to this cause. Defendant admits it did no repairs or maintenance from, at least, 2006 up through the date that Miles O” Flaherty was injured. The express language of the statute applies to “repairs” and “maintenance” but does not include lack of same within the purview ofits protection. Clearly, the statute expressly includes many protections forinactions and the failure to so include with regard to sidewalks is determinative. Should someone be injured due to maintenance or repairs that actually occurred, such as in October and December, 2015, then immunity would apply. However, where the City did nothing, immunity, at least as it applies to sidewalks, does not apply. The City also admits that it is responsible for the “upkeep” of sidewalks. Nowhere in the applicable section does the word “upkeep” appear. Thus, there is no immunity for upkeep. Applying the law to this cause, Defendant’s Motion For Summary Judgment should be denied. /s/ David A. Bressman David A. Bressman (0047128) Law OFFICE oF Davip A. BRESSMAN 5186 Paul G. Blazer Parkway Dublin, Ohio 43017 (614)538-1116 Fax: (614)761-8399 David@Bressmanlaw.com Attorney for Plaintiffs CERTIFICATE OF SERVICE This is to certify that the foregoing was served upon: -6-Michael L. Morgan Lance K. Oliver Law Offices of Jerry S. Eisenberg Lawrence & Russell P.O. Box 36538 5178 Wheelis Drive Canton, Ohio 44735 Memphis, TN 38117 Attorney for Defendant City of Delaware Attorney for Defendant Anthem by email or U.S. mail, postage prepaid on May 9, 2017. David A. Bressman David A. Bressman (0047128)IN THE COURT OF COMMON PLEAS DELAWARE COUNTY, OHIO Miles O’Flaherty, et al. CASE NO.: .16 CV C 09 0548 Plaintiffs, JUDGE: Everett H. Krueger “Vs- DEFENDANT’S SUPPLEMENTAL . RESPONSES TO INTERROGATORIES City of Delaware, et al., Defendants. (Jury Demand Endorsed Hereon)DEFENDANT’S SUPPLEMENTAL RESPONSES. TO INTERROGATORIES COMES NOW Defendant City of Delaware (hereinafter “Defendant”), by and through its counsel, and for its supplemental responses to Plaintiffs’ Interrogatories states as follows: Plaintiffs have now identified the loss location as occurring on @ sidewalk on Winter Street and a completely different location than as alleged in the Complaint. Defendant supplements its responses as to the incident occurring on Winter Street. However, Plaintiffs have never amended their Complaint to change the location of the loss. 1. With regard to the Incident referenced in Plaintiffs’ complaint, state whether YOU contend that any negligence on the part of the Plaintiff Miles O’Flaherty, or anyone not presently a party, contributed to the happening of the Incident. For anyone or any entity referenced herein, state the name, last known address, last known phone number for same and such person or entity’s alleged negligence. #1; Miles O'Flaherty was negligent in operating his bicycle over an open and obvious defect on acity sidewalk. He was a contributing factor. 2. IDENTIFY anyone who claims to have witnessed the Incident or to have been at the scene within 30 minutes prior or within 60 minutes after the Incident. #2, City employees Cathy Johnson and Sgt. Shawn Snead were believed to be on the scene within 60 minutes. 3. State whether, in the 5 years prior to the Incident, YOU were aware of any other Incidents [including involving but not limited to: accidents, claims of injuries, slips, trips, stumbles, falls or similar actions] on or near the accident scene. If so, please state: 1 Whether YOU provided any warnings subsequent to such Incident about the condition prior to Plaintiffs’ Incident; 2. The wording of any warning YOU gave; 3. IDENTIFY each PERSON who participated in drafting the wording of any warning; 4. The means by which any warning was transmitted to the generally expected users of the area in which the Incident occurred;5. Whether any incident, or similar, report was generated to document such claims; and, 6. IDENTIFY any person who was involved either in the Incident itself or in the investigation of including the approximate date of same. #3, Defendant states that it is not aware of any prior accidents, claims of injuries, slips, trips, stumbles, fall or similar actions on the sidewalks of Winter Street in the five years prior to August 5, 2015. 4, Do YOU contend that the condition at the accident scene which caused or contributed to the cause of the Incident was so open and obvious that no warning thereof was required? If so, please state the fact or facts upon which you base the contention that the condition. was both “OPEN” and “OBVIOUS.” #4. The raised sidewalk depicted in the photographs of such provided by Plaintiffs in discovery appears to depict a defect so open and obvious that no waming thereof was required. 5. Regarding the accident scene, state the following: lL What governmental [city, state, federal or other] guidelines, if any, were followed in constructing, maintaining or repairing [including upkeep] same; 2. The name(s] of person, persons or entities who constructed or performed any work upon such area; 3. The date that such area was originally constructed; and 4, The date[s] that such area was modified and the modification performed on such dates]. 5. What governmental, including but not limited to, City and State codes apply to the area of the accident scene. #5. City guidelines would have been followed as to the repair and maintenance of the sidewalk on Winter Street. Municipal Code Chapter 909 would have imposed responsibility for the maintenance of the sidewalk upon Defendant. Sidewalks, curbing and handicap ramps are designed and constructed in conformance with the current City Design and Construction Specifications as authorized under section 903.01 of the Municipal Code and in conformance with applicable federal ADA requirements. Defendant’s Public Works department would have performed repairs on the sidewalk. Repairs were performed in October, 2015 and December, 2015. The sidewalks were constructed as a part of the downtown Streetscape project and werepart of phase 3 between 2004-2006. Please see the produced Record Drawings from Ralph and Curl Engineers. 6. Please IDENTIFY each PERSON or, if more appropriate, ENTITY who was responsible for the maintenance, repair [including upkeep] of the PREMISES on of the date of the Incident. #6, The City of Delaware, through its Public Works Department and engineers/employces would have been responsible for the maintenance, repair and upkeep of the sidewalk on Winter Street, 2 Was an incident report, or similarly titled document, generated as a result of the Incident? If so, please IDENTIFY the current custodian of such report. #7. Yes. Defendant. 8. State whether, on the date of the incident, whether the accident scene was the subject of any surveillance, video or otherwise, If the answer is in the affirmative, please IDENTIFY the present custodian of same. #8. The video or surveillance of the sidewalk of Winter Street at the time of the loss (but that did not depict the area of the loss or the loss itself) was produced to Plaintiffs pre-suit pursuant to a records request and is in the possession of Plaintiffs and produced by Plaintiffs in discovery. It is the same video. 9. In the area where the Incident occurred, within 100 feet in any direction on the sidewalk, identify any and all warnings regarding the area where the Incident occurred that were displayed by YOU designed for the viewing of your business invitees. #9, There were no warnings posted regarding the sidewalks on Winter Street on August 5, 2015. 10. With regard to your Answer to Plaintiffs’ complaint; please state the fact, or facts, upon which you based the following Affirmative Defenses [Note: Civ.R. 26(B)(1) states: “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party..." Emphasis added]13, 14, is. 16. 17. 18. 19. 20. 21. 23. 24. 16, 7, 8, p, 710, qu, ql2, qs, 114, us, 116, 417, qs, q19, 20, 21, 22, 23, 124, 25, 926, (27, (28, 29,25. 26. 27. 28. 29. 30. p0, Bl, 82, $3, $84, and Bs. #10. It is believed that Defendant provided this information in response to Plaintiffs’ request for the same information as to the same paragraphs/defenses in relation to supplemental responses to Requests for Admissions, Defendant incorporates those responses by reference. 11. | With regard to your Answer to Plaintiffs’ complaint; please state the person, or persons, whom you reasonably expect to testify in support of the following affirmative defenses [Note: Civ.R. 26(B)(1) states: “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the cfaim or defense of the party seeking discovery or to the claim or defense of any other party..." Emphasis added] 16, v, ® 19, 10, qu, 112, 713, 14, WS, 116, V7,13, 14, 15. 16. 17. 18. 19. 20. 21. 22, 23. 24, 25. 26. 27, 28. 29, 30. 118, Ws, 20, i, 22, 23, 74, Bs, 26, 7, 728, 129, 30, Bl, 32, 33, 734, and 435. #11. It is believed that Defendant provided this information in response to Plaintiffs’ request for the same information as to the same paragraphs/defenses in relation to supplemental responses to Requests for Admissions. Defendant incorporates those responses by reference. 12. State YOUR knowledge of any condition that existed at the accident scene which could cause an incident similar to that which occurred involving Plaintiff Miles O’ Flaherty. Further, set forth:The date YOU acquired that knowledge; 2, IDENTIFY each PERSON who made the existence of the condition known to YOU; 3. Set forth what knowledge YOU had; 4. Set forth whether any remedial or corrective action was taken upon the acquisition of that knowledge, 5. IDENTIFY each PERSON who took any remedial and/or corrective action; and 6. Set forth the date that any corrective action was taken. #12. As to Winter Street, on April 21, 2015, repairs were scheduled for a portion of the sidewalk at an approach to the Justice Center off Winter Street. This was due to a report made by police officer Brenda Wadsworth. Public works employee Fred Crist inspected the sidewalk and determined repairs would be needed. Fred Crist did not note any needs for repairs on any other portion of the sidewalks on Winter Street including where Plaintiff indicates he encountered a raised area of sidewalk. During prep for the approach repair on or about October 25, 2015 and after the loss, it was noted that there were two sidewalk sections west of the approach that had raised sections. Public Works employee Fred Crist made such notations. Those sections were also replaced when the approach was repaired on October 27, 2015. Public Works Employee Charlie Smith made the repairs. Prior to October 25, 2015, the defect was first documented in the incident report related to the loss. If any City employees walked on that portion of the sidewalk in the weeks or months prior to the incident and noted the raised sidewalk, there could be constructive knowledge of such but no defect or complaint was ever reported by any person before the loss. 13. Please identify any DOCUMENT, and the present custodian of same, which references the construction, maintenance, repair (including upkeep] or the like regarding the area where the Incident occurred. #13. Defendant produces documents regarding the design and repair of the sidewalk — Record Drawings and repair orders. 14. State whether YOU made any repair [including upkeep], correction, modification, alternation or the like to the area where the Incident occurred following the Incident. If yes, please set forth: The nature of the repair, correction, modification, alternation..., The date that the repair or correction repair, correction, modification, alternation... was accomplished, and 3. IDENTIFY each PERSON or BUSINESS who participated in the repair, correction, modification, alternation or the like. Ne #14. The old concrete pads were removed and new concrete pads were poured on October 27, 2015 by Public Works employee Charlie Smith. Public Worksemployee Fred Crist was the supervisor on the job. 1. Was there any procedure or program for the inspection of the accident scene prior to the Incident. If yes, please set forth: 1. A general description of each procedure or program; 2. IDENTIFY each PERSON charged with the responsibility for implementing each procedure; 3. Please set forth the regularity with which each procedure or program was to be implemented; 4. Please state whether the procedure and/or program was reduced to a WRITING; 5 Please set forth whether the procedure or program was followed on the date of the Incident; and 6. Whether there existed, pursuant to each procedure or program, a methodology by which the findings of each inspection would be reduced to a WRITING. #15, The sidewalks on Winter Street were evaluated in 2009 as a part of the “Safe Walks Program” and no deficiencies were noted at that time and therefore no paperwork or report was generated. The program is a sidewalk improvement initiative to provide safe pedestrian routes and has been in place since 2007, In 2006, City Council passed an ordinance instructing city departments to undertake a comprehensive sidewalk inspection and repair program. Depending upon the location of the sidewalk, the responsibility of the maintenance and repair as to any deficiencies would fall upon Defendant or the adjacent property owner. The program has a revolving inspection schedule ~ initially from 2007-2017 with specific zones to be inspected each year. The program was being followed on the date of the incident. 16. Please state whether YOU transmitted any warning to Plaintiff Miles O’Flaherty in regard to his use of the accident scene prior to the Incident. If yes, please set forth: 1 The PERSON who gave the warning, 2. The exact words used in the warning, 3. Each PERSON who was a witness to the transmission of any warning?#16. Defendant never transmitted a warning to Miles O’Flaherty regarding the use of any sidewalk. 17, Identify any lay or expert witnesses you anticipate calling during the pendency of this lawsuit including, but not limited to, the trial of this action and any dispositive motion, indicating each person’s contact information and expected testimony. #17, Jackie M. Walker, Assistant City Manager: Fred Crist, employee, Public Works Department; Charlie Smith, employee, Public Works Department; Cathy Johnson, employee, Parking; Sgt. Shawn Snead, employee, Police Department; Marion Stephens, employee, Engineering Technician, City of Delaware Public Works Department — Division of Traffic & Engineering Services. All the individuals are still employed with Defendant and can be reached through defense counsel. Ms, Walker, Mr. Crist, Mr. Smith and Mr. Stephens know about the repair to the sidewalk after the defect was noted in October, 2015. Mr. Crist knows about not noticing the defect in April, 2015 when he inspected another portion of the sidewalk. Ms. Walker has general information about the city and its ordinances. Mr. Stephens knows about the “Safe Walks Program” and last inspection of the sidewalk pursuant to that program. Ms. Johnson was first on the scene after the incident and Sgt. Snead responded to the scene after the incident. It is expected that Plaintiffs may be called upon cross-examination. 18. Identify any and all exhibits, demonstrative or otherwise, that you reasonably anticipate using at the trial of this action or in support of any motion or during any deposition. #18, Photographs taken of Winter Street before and after the loss and as produced by Plaintiffs in discovery. The minor’s medical records and medical bills - inclusive of documentation of insurance payments as to said medical bills. Photographs taken of the subject sidewalk after suit was filed. Documents regarding repairs to the sidewalk. All are in possession of Plaintiffs or are produced. 19. Please state whether, within the 5 years immediately preceding the Incident, YOU received any notice that the accident scene violated any applicable safety code [including, but not limited to building, fire, health code, etc.]? If yes, set forth 1. The date YOU received that notice, 2. Set forth the name of the public agency that issued the notice, 3. Set forth the date that the notice was issued,Set forth the contents of the notice, Set forth whether any remedial or corrective measures were undertaken upon the acquisition of the notice, 6. IDENTIFY any PERSON who took remedial or corrective measures. ae #19. In the five years before August 5, 2015, Defendant never received notice that any sidewalk on Winter Street violated any applicable safety code. 20. To the extent not already identified above state, for the 10 years prior to the Incident, all Tepairs, maintenance, modification or other work performed at the accident scene. #20. None from the time of construction through the date of loss. 21. — To the extent not already identified above state, for the 10 years prior to the Incident, all repairs, maintenance, modification or other work scheduled to be performed at the accident scene but, as of the date of the Incident, unperformed. #21, None as to the sidewalks on Winter Street. 22. To the extent not already identified above state, for the time period after the Incident, all repairs, maintenance, modification or other work performed at the accident scene, #22. Other than as indicated above, paver bricks were repaired near a utility pole on the north side of the library of Winter Street. Respectfully submitted and as to all objections: Michael L. Morgan (0087565)CERTIFICATE OF SERVICE Thereby certify that a copy of the foregoing Supplemental Responses to Interrogatories was sent by regular U.S. Mail, postage prepaid, on this__ day of March, 2017 to: David A. Bressman 5186 Paul G. Blazer Parkway Dublin, OH 43017 Laurence K. Oliver Lawrence & Russell 5178 Wheelis Drive Memphis, TN 38117 Respectfully submitted, MICHAEL L. MORGAN, ESQ, (0087565) OF: LAW OFFICES OF JERRY S. EISENBERG Ohio Mailing Address: P.O. Box 36538 Canton, OH 44735 330-415-8890 Phone 855-515-8236 Facsimile Michael, Morgan@selective.comAFFIDAVIT STATEOF | COUNTY orf C Iniacrc\ wel) vw et (ev being first duly sworn and advised, do hereby swear and CU affirm that the above responses to admissions are true and accurate to the best of my knowledge and belief. Further Affiant Sayeth Naught life ( Date yr 5 end (ui We On this _ } day of XC uo 201 L¢, the-affiant, before me and verified that the above was ac r Ue. F appeared v Hide il ‘0 Hie best of his/her knowledge and belief. lic hyte fee *Signanure of Notary My commission expires on % day of Avepat. 2].