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Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
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IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO
Robert Knobler, M.D.
Case No, 16CV-005755
Plaintiffs
Judge Serrott
v.
Long Street Associates, et al.,
Defendants.
DEFENDANT LONG STREET ASSOCIATES’ MOTION FOR SUMMARY JUDGMENT
Now comes Defendant Long Street Associates, by and through counsel, pursuant
to Ohio Rule of Civil Procedure 56, and hereby move this Honorable Court for an order
dismissing with prejudice all of Plaintiffs’ claims against it,
The relief requested in this Motion is warranted and appropriate for the reasons
stated in the attached and incorporated Memorandum in Support.
Respectfully submitted,
fs! Richard A. Williams
RICHARD A. WILLIAMS (0013347)
SUSAN S.R. PETRO (0050558)
Williams & Schoenberger Co., L.L.C.
338 S. High Street, 2°4 Floor
Columbus, OH 43215
Phone: (614) 224-0531/ Fax: (614) 224-0553
Rwilliams@wslegalfirm.com
SPetro@wslegalfirm.com
Attorney for Defendant Long Street AssociatesFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
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MEMORANDUM IN SUPPORT
L. Statement of Facts
“This is a refiled case.” (Complaint, caption). Plaintiffs’ refiled their Complaint on
June 17, 2016, alleging that “[o]n or about July 9, 2012, Plaintiff Robert Knobler was
injured at 49-55 West Long Street, Columbus, Ohio 43215 (hereinafter, “the Property’).
Dr. Knobler was injured as he attempted to protect his wife, Plaintiff Jane Knobler, who
was falling on the side walk of the above property.” (Complaint, paragraph 1). Plaintiffs
assert that Defendant Long Street Associates and/or others negligently maintained the
sidewalk, “which caused Plaintiff Jane Knobler to fall despite the fact that she was
exercising ordinary care.” (Id. at paragraph 10). However, Plaintiffs are not seeking relief
for injuries that Mrs. Knobler sustained. Rather, they seek to recover for injury to Mr.
Knobler, who allegedly sustained injury as he attempted to protect Mrs. Knobler and break
her fall. (Id. at paragraph 11).
Plaintiffs assert claims for premises liability, negligence, and negligence per se,
citing both a common law duty to maintain the sidewalk and “duties set forth by Columbus
City Code, Chapter 905.” (id. at paragraphs 12, 14, and 15). However, Plaintiffs admit
that they were not tenants of, patrons of any tenant of, or business invitees of Defendant
Long Street Associates and/or of any tenant of the Property. (Exhibits A and B hereto,
Admissions #5, 6, 7, 10, and 11). Plaintiffs further admit that Mr. Knobler’s complained-
of injury arose from an incident that occurred outside the Property, on the adjacent
sidewalk, as Plaintiffs were walking past, with no intent to enter the Property. (id. at
Admissions #1, 2, 3, 4, and 8).Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
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IL. Law and Argument
A. Summary Judgment and Negligence, generally
Under CivR. 56(C), summary judgment is appropriate if:
(1) no genuine issue of material fact remains to be litigated, (2) the moving
party is entitled to judgment as a matter of law, and (3) viewing the evidence
most strongly in favor of the nonmoving party, reasonable minds can come
to but one conclusion, that conclusion being adverse to the nonmoving
party.
Gay St. Polaris, L.L.C. v. Polaris Pediatrics, Inc., 10 Dist. Franklin No. 16AP—360, 2016-
Ohio-7576, {] 16 (Nov. 1, 2016), citing Harless v. Willis Day Warehousing Co., 54 Ohio
St.2d 64, 66 (1978). Where, as in the present case, the claims sound in negligence, the
question of duty is both fundamental to the claims and a legal matter for the court's
determination. Wagner v. Ohio State Univ. Med. Cir., 188 Ohio App.3d 65, 2010-Ohio-
2561, 934 N.E.2d 394, §] 22 (10" Dist. 2010) [citations omitted].
In the present case, Defendant Long Street Associates is entitled to summary
judgment on all claims asserted against it because:
1) Normally, the owner of property that abuts a public sidewalk is not liable for
injuries sustained by pedestrians thereon (the duty to keep streets, including
sidewalks, in repair rests upon municipalities and not upon the abutting
owners);
2) Applicable Columbus City Code provisions regarding sidewalk maintenance
do not alter the prevailing rule or serve as a basis for negligence per se;
3) Irrespective of who bore responsibility for the sidewalk, its condition was
open and obvious thereby obviating any duty of care owed; andFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
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4) Even if Plaintiffs are deemed to have been on Long Street Associates’
premises, they were present as licensees and Long Street Associates did
not violate the duty of care owed to them.
B. Mr, Knobler sustained injury on_a public sidewalk; therefore, Long
Street Associates owed him no duty of care.
“{UJnless otherwise established, a sidewalk on a public street is presumed to be
within the limits of the public street and under the control of the municipality.” Miller v.
Cruickshank, 10" Dist. Franklin No. O6BAP-1088, 2007-Ohio-3055, {] 10 (Jun. 19, 2007),
citing Eichorn v. Lustig's, inc., 161 Ohio St. 11, 13, 117 N.E.2d 436 (1954). “As such, the
duty to keep streets, including sidewalks, in repair and free from nuisance rests upon a
municipality and not the abutting property owners.” Miller, supra at J 10, citing Eichorn,
161 Ohio St. at 13. (Emphasis added). See also, Parrish v. Hayes, 2™ Dist. Montgomery
No. 26752, 2015-Ohio-5387, J] 25 (Dec. 23, 2015); Feorene v. Barney, 8" Dist. Cuyahoga
No. 97753, 2012-Ohio-3461, J 10 (Aug. 2, 2012); Burgess v. Johnson, 5" Dist. Delaware
No. 11CAE050042, 201 1-Ohio-5241, § 14 (Oct. 10, 2011); Pozniak v. Recknagel, 9"" Dist.
Lorain 03CA008320, 2004-Ohio-1753, J 13 (Apr. 7, 2004); and Tackett v. Ball, 4" Dist.
Jackson No. 97CA822, 1998 WL 670251, *2 (Sept. 23, 1998).
In the present case, Plaintiffs were outside 49-55 West Long Street, Columbus,
Ohio 43215, on the adjacent sidewalk, walking past the Property when Mr. Knobler fell.
(Exhibits A and B hereto, Admissions #1, 2, 3, and 8). Absent evidence of ownership,
dominion, or duty otherwise established, Long Street Associates, as the abutting
premises owner, is not liable for Ms. Knobler’s fall. Miller, Eichorn, Parrish, Feorene,
Burgess, Pozniak, and Tackett, all supra.ops06 - pbpnktin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
There are only three recognized exceptions to the general rule that cities, not
abutting property holders, are liable for incidents on sidewalks. Those exceptions arise:
1) Where “a statute or ordinance imposes upon the property owner a
specific duty to keep the sidewalk adjoining this property in good
repair.” Miller, supra at J 11;
2) When the property owner/occupier property owner “by affirmative
acts’ creates or negligently maintains the defective or dangerous
condition causing the injury.” /d.; and
3) If “a property owner negligently permits the defective or dangerous
condition to exist for some private use or benefit.” /d.
None of the foregoing exceptions apply in the present case.
Cc. Columbus City Code provisions regarding sidewalk maintenance do
not establish negligence per se.
City of Columbus Code of Ordinances defines “sidewalk” as “that portion of a street
between the curb lines, or the lateral lines of a roadway, and the adjacent property lines,
or easement lines intended for the use of pedestrians.” Ord. 900.07.
Chapter 905 of the Code of Ordinances exists to protect health and welfare “by
way of preventing and/or abating hazardous sidewalk . . . conditions . . . by establishing
minimum standards relative to . .. maintenance and construction [and] [t]he control and
abatement of hazard[s.]” Ord. 905.01. Consistent with this intent:
The abutting private property owner of record shall be responsible for the
proper maintenance and repair of all sidewalks .. . within the abutting right-
of-way or easement for any improved or unimproved street, alley, or other
public way within the city, which provides access around, in, or to said
private property. * ***
Ord. 905.06. The Code of Ordinances describes the maintenance and repair
responsibility as follows:Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
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No abutting property owner shall allow the condition of the sidewalk,
shared-use path, and/or driveway approach within the public right-of-way
or easement to deteriorate beyond the criteria herein established. Criteria
for ordering the replacement or repair of sidewalks, shared-use paths, or
driveway approaches shall be any or all of the conditions described as
follows:
Offset of one-half (7%) inch or greater;
Crack which has a gap of greater than one-half (1%) inch;
An area where there exists a difference in elevation of material of one-
half (%) inch or greater;
Excessive deterioration, spalling or exposed gravel of one-half (74) inch
or greater in depth;
Excessive slope caused by a shifting of the sidewalk, shared-use path
or driveway approach.
Patching shall not be permitted as a means of eliminating criteria for
replacement. The complete removal or leveling of existing concrete
shall be required of a concrete panel from joint to joint. If a construction
tool joint is not present, then the entire area shall be corrected unless
authorized otherwise by the director. Where offsets, elevation
differences, deterioration, and/or spalling exceeds one and one-half
(1.5) inches in depth within a sidewalk, shared-use path or driveway
approach, and/or where excessive sidewalk or shared-use path cross
slope is equal to or greater than ten (10) percent, these conditions shall
be considered just cause for emergency barricade and/or repair by the
director, as outlined within Section 905.13, Emergency Orders.
Ord. 905.11.
Although the Code of Ordinances authorizes the City to enforce its sidewalk
maintenance and repair provisions, it does not create or recognize liability for
negligence arising from an abutting property owner's failure to comply. See, Ord.
905.12, 905.13, 905.14, 905.15, and 905.16.
The Tenth District Court of Appeais holds that “the failure of an abutting property
owner to maintain a sidewalk in good repair in compliance with an ordinance, without
more, does not give rise to a right of action on the part of a pedestrian who is injured byFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
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reason of such defect.” Miller, supra at J 13, citing Yonut v. Salemi, 10" Dist. Franklin
No. O5AP-1094, 2006-Ohio-2744, 9] 15-19 (Jun. 1, 2006); and Dennison v. Buckeye
Parking Corp., 94 Ohio App. 379, 380-381, 115 N.E.2d 187 (10 Dist. 1953)]. See also,
Pozniak, supra at J 18; Tackett, supra at *2; Burgess, supra at J] 22-27; Feorene, supra
at ff] 11-13; and Lopatkovich v. Tiffin, 28 Ohio St.3d 204, 207, 503 N.E.2d 154 (1986).
The Feorene court declined to find negligence per se even where the applicable
local ordinance expressly made the abutting property owner liable for injury resulting from
a defect or obstruction in the adjacent sidewalk. Feorene, supra at fff 11-12. The court
reasoned that absent advanced notice from the municipality to the property owner of the
defect or obligation to repair, the property owner could not be held liable. Feorene, supra
at ff] 11-13. No such reasoning is necessary where — as in the present case and Miller,
Yonut, Dennison, Pozniak, and Tackett — the local ordinance does not expressly create
liability in the abutting property owner.
In Pozniak, for example, the court declined the invitation to construe a local
ordinance imposing a repair/maintenance responsibility on the abutting property owner to
create a duty of care toward pedestrians. The decision states:
we will not read such a meaning into this ordinance. This Court has
previously noted that a duty to the public at large does not arise from
ordinances of this nature; particularly, we found that a similar ordinance
does not impose a duty upon abutting landowners to the public to protect
them from defects or obstructions that might arise on sidewalks adjacent to
their property.
Pozniak, supra at J 18, citing Settie v. Palmer, 9'" Dist. Lorain No. 92CA005463, 1993
WL 498212 (Dec. 1, 1993). (Emphasis added).
The Tackett court explained that when the clear language of a local ordinance does
not, in and of itself, impose civil liability on the abutting property owner for a pedestrianFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
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who sustains injury on the sidewalk, courts often construe the ordinance language “to
impose only a duty to assist the municipality in its responsibility to maintain the public
sidewalks.” Tackett, supra at *2. “Further, as a matter of public policy, such statutes are
not meant to be used by injured pedestrians to impose potential liability on adjacent
property owners.” Id., citing Lopatkovich and Eichorn, both supra. (Emphasis added).
The Pozniak and Tackett courts’ reasoning applies with equal force in the present
case. As the Tenth District Court of Appeals recognized in Miller, regardless how Plaintiffs
may urge otherwise, there is “no basis to part from well-established precedent[.]’ /d. at ]
15. Here, as in Yonut, the only penalty for non-compliance that the ordinance imposes is
set forth in the ordinance itself — a fine for each offense, which recurs each day that the
violation persists. Yonut, supra at 21; Ord. 905.99. Consequently, property owners like
Long Street Associates may be sanctioned by the municipality for violating an ordinance.
However, they cannot be held liable in negligence for a pedestrian’s injuries (like those
that the Knoblers claim) based on an alleged violation of said ordinance. /d.
Under mandatory (Miller, Yonut, Dennison, Eichorn, and Lopatkovich) and
persuasive (Feorene, Tackett, Pozniak) precedent, relevant Columbus City ordinances
create a duty on the part of abutting property owners to help the City maintain adjacent
public sidewalks but no duty to passing pedestrians for injury sustained on sidewaiks not
maintained or repaired per applicable ordinances. Therefore, the first exception to
Ejichorn's general no-duty rule does not apply here.
Absent evidence that Long Street Associates met the second or third exception to
the no-duty rule, it cannot be held liable to Plaintiffs for their alleged injuries and damages.
Miller, supra at §f 11.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
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D. Long Street Associates did not affirmatively create or negligently
maintain an injurious condition on the adjacent sidewalk.
The second exception to Eichorn’s no-duty rule arises when the abutting property
owner “by affirmative acts” creates or negligently maintains the complained-of condition
in the sidewalk. Miller, supra at J 11. However, the evidence in the present case does
not substantiate the affirmative conduct necessary for this exception to apply.
“Such evidence must necessarily show that the use of the sidewalk which brought
about its disrepair was expressly or impliedly authorized by such owner.” Ejichorn, 161
Ohio St. at 14. As such, the second exception does not apply unless the evidence
demonstrates both:
1) that the injurious condition arose out of a “use” of the sidewalk that the
abutting property owner authorized; and
2) that said “use” involved “affirmative acts” amounting to the “construction of
an obstruction” or negligence “such as constructing a manhole in the
sidewalk and leaving it uncovered.”
Dennison, 94 Ohio App. at 380. Addressing the second prong of the test, the Milfer court
explained:
if [the property owner] ran a business out of his home and the passage of
automobiles over the sidewalk subjected it to more strenuous usage than
mere pedestrian traffic, such would not constitute an “affirmative act” so as
to result in liability to [the property owner]. [internal citation omitted].
Moreover, normal wear and tear of a sidewalk, without any ‘affirmative
negligence” by the adjacent landowner, will not create liability to_the
landowner.
Miller, supra at {| 20, citing Purdom v. Sapadin, 111 Ohio App. 488, 168 N.E.2d 558 (4
Dist. 1960); and Dennison. (Emphasis added).Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
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Applying this understanding of “affirmative acts,” the Miller court held that the facts
before it failed to meet the first prong of the second exception standard. Planting a tree
near the sidewalk years before the plaintiff tripped on a resulting heave caused by mature
tree roots did not constitute a “use” of the sidewalk at all. Miller, supra at J 18.
Conversely, neglecting to remove grass growing over a defect in a sidewalk fails to satisfy
the second prong of the test because it is insufficiently affirmative in nature. Burgess,
supra at {[] 31-32. Instead, the property owner “must actually do something to the
sidewalk in order to be liable.” Id., quoting the trial court. (Emphasis added).
In the present case, the facts fall short of the second exception standard in both
respects. There is no evidence that Long Street Associates made any particular use of
the adjacent sidewalk, much less an affirmative use that caused an injurious condition
about which Plaintiffs complain. Miller and Burgess, both supra. Certainly, Plaintiffs have
not complained that Long Street Associates installed a manhole and then left it
uncovered, as the case law mandates for an “affirmative act” sufficient for the second
exception to the no-duty rule. Miller, supra at | 19, citing Dennison.
Here, as in Miler, “[e]ven if a landowner's use of a sidewaik may have been more
severe than ordinary use, that is only a question of degree and does not create liability
for the landowner.” Miller, supra at J 20, quoting O'Neal v. Arndt, 6 Dist. Ottawa No.
OT-98-035, 1999 WL 436205, *7 (Jun. 30, 1999) [citing Purdom v. Sapadin, 111 Ohio
App. 488, 489, 168 N.E.2d 558 (1% Dist. 1960)].
Therefore, the second exception to the Eichorn no-duty rule has no application
here. Absent evidence that Long Street Associates met the third exception, it cannot be
held liable for Plaintiffs’ claimed damages. Miler, supra at 11.
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E. Long Street Associates did _not_negligently permit _an_injurious
condition to exist for its use or benefit.
The third exception to the Eichorn no-duty rule applies where the property owner
negligently permits a defective condition to exist for some private use or benefit. Miller,
supra at 911. “[Aln open trap door” qualifies. Eichom, supra. Appropriating a portion of
the sidewalk for a coal chute qualifies. Miller, supra at {| 19, citing O’Nea/, supra at *6.
However, when the facts fail to demonstrate a benefit to the property owner from
the injurious condition or another authorized use that brought the condition about, the
third exception to the no-duty rule does not apply. Miller, supra at ] 20. See also, Yonut,
supra at J] 20, holding that “fail[ure] to keep their sidewalk in good repair . . . without more,
does not confer upon [the plaintiff] the right to bring a negligence against [the property
owner;]’ and Burgess, supra at {J 32, holding that the record before it did not demonstrate
a use or benefit to the property owner from the growth of grass in the sidewalk.
In alike manner, nothing in the evidentiary record in the present case substantiates
a use or benefit to Long Street Associates from the deterioration of the adjacent sidewalk
over time. Having not appropriated the portion of the sidewalk at issue for any particular
purpose, Long Street Associates cannot be held liable for Plaintiffs’ claimed damages
absent more than the complained-of failure to maintain the sidewalk in good repair.
Eichorn, Miller, O’Neal, Yonut, and Burgess, all supra. The third exception to the no-duty
rule does not apply here.
Because none of the exceptions apply, the Eichor no-duty rule prevails. Long
Street Associates is entitled to summary judgment on Plaintiffs’ claims because Plaintiffs
cannot establish that Long Street Associates owed them a duty of care.
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F. The sidewaik’s condition was open and obvious thereby obviating
any duty of care owed.
Even if Plaintiffs’ evidence establishes an exception to the Eichorn rule that an
abutting property owner cannot be held liable for injury to a pedestrian on an adjacent
sidewalk, the condition of the sidewalk in question was open and obvious, eliminating any
duty on Long Street Associates’ part. “The ‘open-and-obvious doctrine relates to the
threshold issue of duty in a negligence action.” Watkins v. Scioto Downs, Inc., 10" Dist.
Franklin No. 145AP-985, 2016-Ohio-3141, 66 N.E.3d 88, {| 10 (May 24, 2016), quoting
Matt v. Ravioli, inc., 8 Dist. Cuyahoga No. 100553, 2014-Ohio-1733, J] 10 (Apr. 24, 2014)
[citing Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d
1088, J] 13 (2003)}.
“tf a condition is open and obvious, ‘the premises owner is absolved from taking
any further action to protect the plaintiff.” Watkins, supra at {| 10, quoting Matt, supra at
4 10. Therefore, when the open and obvious doctrine applies, it acts as a complete bar
to recovery. /d. The rationale is that the openness and obviousness of the hazard itself
is its own warning, alleviating the premises owner/occupier of the duty to offer a warning.
Watkins, supra at 10, quoting Price v. Dept. of Rehab & Corr., 10" Dist. Franklin No.
14AP-11, 2014-Ohio-3522, J 10 (Aug. 14, 2014) [additional citations omitted].
Where, as in the present case, there is no evidence to suggest that the condition
was obscured, hidden, or latent, “the open and obvious nature of the danger may
appropriately be determined as a matter of law.” Price at 11, quoting Mayle v. Ohio
Dept. of Rehab. & Corr., 10" Dist. Franklin No. O9AP-541, 2010-Ohio-2774, [19 (Jun.
17, 2010). Therefore, even if Plaintiffs’ claims against Long Street Associates are not
precluded by the Eichorn no-duty rule, they are barred by the open and obvious doctrine.
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G. if Plaintiffs were on Long Street Associates’ premises, they were
present as licensees and Long Street Associates did not violate any
duty of care owed to them.
Finally, if this Honorable Court finds that Plaintiffs’ claims clear all of the above-
described legal hurdles to the establishment of a duty owed, they fail for want of evidence
that the duty was breached. Yonut, supra at J] 9-10 and 14.
In Ohio, the duty of a property owner to one who enters on the premises is dictated
by the plaintiff's status, whether invitee, licensee, or trespasser. /d. at 7.9. “A licensee is
a person who enters the premises of another by permission or acquiescence, for his own
pleasure or benefit, and not by invitation.” /d. at ]] 10, citing Light v. Ohio Univ., 28 Ohio
St.3d 66, 68, 502 N.E.2d 611 (1986).
In the present case, there can be no question that Plaintiffs were licensees on Long
Street Associates’ premises, as they were passing by with no intention of entering the
building. (Exhibits A and B, Admission #4). Moreover, Plaintiffs admit that they were not
tenants of, patrons of any tenant of, or business invitees of Defendant Long Street
Associates and/or of any tenant of the Property. (Exhibits A and B hereto, Admissions
#5, 6, 7, 10, and 11).
“A licensee takes his license subject to its attendant perils and risks. The
licensor is not liable for ordinary negligence and owes the licensee no duty
except to refrain from wantonly or willfully causing injury.”
Light, 28 Ohio St.3d at 68.
Where, as in this case, there is no allegation of willful or wanton conduct on the
part of the property owner, the claims against it will not lie. Alen v. Rankin, 4" Dist.
Pickaway No. 12CA10, 2013-Ohio-456, {| 25 (Jan. 29, 2013), in which — as in the present
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case — the plaintiff sought to recover for injuries sustained in a fall on a sidewalk outside
a property she was walking pass.
Here, as in Alfen, absent an allegation and evidence of willful and wanton conduct,
there is no breach of the duty of care owed. Therefore, summary judgment is appropriate.
td. at 143. See also, Parrish, supra, at ff] 26 and 28.
IV.___ Conclusion
For the foregoing reasons, Defendant Long Street Associates respectfully
requests that this Honorabie Court grant its Motion for Summary Judgment and dismiss
with prejudice all of Plaintiffs’ claims against it.
Respectfully submitted,
/s/ Richard A. Williams
RICHARD A. WILLIAMS (0013347)
SUSAN S.R. PETRO (0050558)
Williams & Schoenberger Co., L.L.C.
338 S. High Street, 2"4 Floor
Columbus, OH 43215
Phone: (614) 224-0531/ Fax: (614) 224-0553
Rwilliams@wslegalfirm.com
SPetro@wslegalfirm.com
Attorney for Defendant Long Street Associates
14Frankli i - : -
ops06 - pan in County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
CERTIFICATE OF SERVICE
| certify that a copy of the foregoing document was served via E-Mail on this 20%
day of March 2017 upon the following:
John C. Camillus Janet R. Hill Arbogast
jcamillus@camilluslaw.com jrhillarbogast@columbus.gov
Law Office of John C. Camillus, LLC City of Columbus, Department of Law
P.O. Box 141410 Richard C. Pfeiffer, Jr. City Attorney
Columbus, OH 43214 77 N. Front Street, 4" Floor
Attorney for Plaintiffs Columbus, OH 43215
Attorney for Defendant City of Columbus
Js/ Richard A. Williams
Richard A. Williams, Esq. (0013347)
S:FILES\ 4pwi04\RE FILED CASE\MSJ\MSJ.2-22-17.docx
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ops06 - peer in County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO
Robert Knobler, M.D., et al.
Case No.
Plaintiffs,
Judge Serrott
ve
16 CV 005755
Long Street Associates, et al.
Defendants.
PLAINTIFF ROBERT KNOBLER’S RESPONSES
TO FIRST REQUEST FOR ADMISSIONS
Pursuant to Rules 26 and 36 of the Ohio Rules of Civil Procedure, Plaintiff hereby submits
his responses and objections to Defendants’ First Set of Interrogatories and Requests for
Production of Documents to Plaintiff (the "Discovery Requests"),
GENERAL RESPONSES AND OBJECTIONS
1 Plaintiff objects to the Discovery Requests to the extent they seek the disclosure of
information which is protected by the attorney-client privilege, the work product doctrine or which is
otherwise privileged or protected from disclosure, and will not disclose such information.
2. Plaintiff objects to the Discovery Requests to the extent they seek information that is
neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.
3. Plaintiff states that he is responding to the Discovery Requests to the best of his
present knowledge, information and belief, and he expressly reserves the right to supplement his
responses herein, if necessary.
4, In providing responses to the Discovery Requests, Plaintiff does not waive and
expressly reserves all objections as to competency, relevancy, materiality, and admissibility of the
answers as well as all objections to any other discovery request.Frankli . . . _
ops06 - page lin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
Subject to the foregoing objections, and to the particularized objections set forth below,
plaintiff responds as follows:
REQUEST FOR ADMISSIONS
1 Admit that your complained-of July 9, 2012 injury “at 49-55 West Long Street, Columbus,
Ohio 43215” (Complaint, paragraph 1) did not occur inside the building identified as 49-55
West Long Street, Columbus, Ohio 43215.
RESPONSE:
Admit,
2. Admit that your complained-of July 9, 2012 injury “at 49-55 West Long Street, Columbus,
Ohio 43215” (Complaint, paragraph 1) occurred outside the building identified as 49-55 West
Long Street, Columbus, Ohio 43215,
RESPONSE:
Admit.
3. Admit that your complained-of July 9, 2012 injury “at 49-55 West Long Street, Columbus,
Ohio 43215” (Complaint, paragraph 1) occurred on the sidewalk immediately adjacent to the
building identified as 49-55 West Long Street, Columbus, Ohio 43215,
RESPONSE:
Objection to the extent that the term “immediately adjacent” is not defined and subject to
interpretation, otherwise admit.
4. Admit that immediately before and/or at the time of your complained-of July 9, 2012 injury
“at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) you were not
intending to enter the building identified as 49-55 West Long Street, Columbus, Ohio 43215.
RESPONSE:
Admit,Franklin C i = : -
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5. Admit that on July 9, 2012, you were not a tenant of the building identified as 49-55 West
Long Street, Columbus, Ohio 43215.
RESPONSE:
Admit.
6. Admit that immediately before and/or at the time of your complained-of July 9, 2012 injury
“at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) you were not
intending to patronize any tenant or occupant of the building identified as 49-55 West Long
Street, Columbus, Ohio 43215.
RESPONSE:
Admit.
7. Admit that immediately before and/or at the time of your complained-of July 9, 2012 injury
“at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) you were not
intending to engage in any business transaction or other activity with or involving any tenant
or occupant of the building identified as 49-55 West Long Street, Columbus, Ohio 43215.
RESPONSE:
Admit.
8. Admit that immediately before your complained-of July 9, 2012 injury “at 49-55 West Long
Street, Columbus, Ohio 43215” (Complaint, paragraph 1) you were intending to walk past the
building identified as 49-55 West Long Street, Columbus, Ohio 43215.
RESPONSE:
Admit.
9 Admit that the only reason you did not walk past the building identified as 49-55 West Long
Street, Columbus, Ohio 43215 on July 9, 2012 is that you sustained injury about which you
complain in the above captioned case.
RESPONSE:
Deny.Frankli i - : -
ops06 - pgie" in County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
10. Admit that on July 9, 2012 your use of the sidewalk immediately adjacent to the building
identified as 49-55 West Long Street, Columbus, Ohio 43215 was not at the express
invitation of Long Street Associates.
RESPONSE:
Admit.
11. Admit that on July 9, 2012 your use of the sidewalk immediately adjacent to the building
identified as 49-55 West Long Street, Columbus, Ohio 43215 was not at the express
invitation of any tenant or occupant of said building.
RESPONSE:
Admit.
12. Admit that on July 9, 2012 your use of the sidewalk immediately adjacent to the building
identified as 49-55 West Long Street, Columbus, Ohio 43215 was a matter of your
convenience or pleasure,
RESPONSE:
Objection. The phrase “matter of your convenience or pleasure” is vague and ambiguous.
Plaintiff admits that he was not required by anyone to use that sidewalk.
13. Admit that the condition of the sidewalk to which you attribute your July 9, 2012 injury was
not an obstruction built up on or added above the surface of said sidewalk.
RESPONSE:
Deny.
14, Admit that the condition of the sidewalk to which you attribute your July 9, 2012 injury
consisted of variations in height below the primary or intended or originally installed surface
of said sidewalk.
RESPONSE:
Plaintiff admits that the variations included variations in height below the primary or intended
originally installed surface, but denies that the variations were limited to variations in heightFi i i - : -
op506 - pgenktin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
below the primary or intended originally installed surface.
15. Admit that the term “cracked” pavement, as used in paragraph 10 of your Complaint, refers to
a gap in the surface of the pavement, in which gap the pavement is either missing or sitting at
a lower surface level.
RESPONSE:
Deny.
16. Admit that the term “chipped” pavement, as used in paragraph 10 of your Complaint, refersto
locations on the surface of the pavement where the surface height is lower than intended or
originally installed.
RESPONSE:
Deny.
17. Admit that the term “chipped” pavement, as used in paragraph 10 of your Complaint, refers to
locations on the surface of the pavement where the primary or intended or originally installed
surface of said sidewalk is missing, leaving lower areas of the subsurface pavement exposed.
RESPONSE:
Deny.
18. Admit that the term “divots,” as used in paragraph 10 of your Complaint, refers to low areas
in the surface of the pavement where the primary or intended or originally installed surface of
said sidewalk is missing.
RESPONSE:
Deny.
19. Admit that the term “uneven pavement” as used in paragraph 10 of your Complaint does not
refer to places where the surface has been built up above the primary or intended or originally
installed surface.
RESPONSE:Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
OD506 - D83
Deny.
Respectfully submitted,
/s/ John C. Camillus
John C. Camillus (0077435)
Law Office of John C. Camillus, LLC
P.O. Box 141410
Columbus, Ohio 43214
(614) 558-7254
(614) 559-6731 (Facsimile)
jeamillus@camilluslaw.com
Attorney for PlaintiffsFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
OD506 - D84
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing paper was served on counsel
for Defendants, by email transmission, this 10th day of February, 2017.
/s/ John C. Camillusops06 - pgenktin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO
Robert Knobler, M.D., et al. :
3 Case No.
Plaintiffs, :
: Judge Serrott
v :
: 16 CV 005755
Long Street Associates, et al.
Defendants. :
PLAINTIFF JANE KNOBLER’S RESPONSES
TO FIRST REQUEST FOR ADMISSIONS
Pursuant to Rules 26 and 36 of the Ohio Rules of Civil Procedure, Plaintiff hereby submits
her responses and objections to Defendants’ First Set of Interrogatories and Requests for
Production of Documents to Plaintiff (the "Discovery Requests").
GENERAL RESPONSES AND OBJECTIONS
1. Plaintiff objects to the Discovery Requests to the extent they seek the disclosure of
information which is protected by the attorney-client privilege, the work product doctrine or which is
otherwise privileged or protected from disclosure, and will not disclose such information.
2. Plaintiff objects to the Discovery Requests to the extent they seek information that is
neither relevant nor reasonably calculated to lead to the discovery of admissible evidence,
3. Plaintiff states that she is responding to the Discovery Requests to the best of his
present knowledge, information and belief, and he expressly reserves the right to supplement his
responses herein, if necessary.
4, In providing responses to the Discovery Requests, Plaintiff does not waive and
expressly reserves all objections as to competency, relevancy, materiality, and admissibility of the
answers as well as all objections to any other discovery request.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
OD506 - D86
Subject to the foregoing objections, and to the particularized objections set forth below,
Plaintiff responds as follows:
3.
REQUEST FOR ADMISSIONS
Admit that Plaintiff Robert Knobler’s complained-of July 9, 2012 injury “at 49-55 West Long
Street, Columbus, Ohio 43215” (Complaint, paragraph 1) did not occur inside the building
identified as 49-55 West Long Street, Columbus, Ohio 43215.
RESPONSE:
Admit,
Admit that Plaintiff Robert Knobler’s complained-of July 9, 2012 injury “at 49-55 West Long
Street, Columbus, Ohio 43215” (Complaint, paragraph 1) occurred outside the building
identified as 49-55 West Long Street, Columbus, Ohio 43215.
RESPONSE:
Admit.
Admit that Plaintiff Robert Knobler’s complained-of July 9, 2012 injury “at 49-55 West Long
Street, Columbus, Ohio 43215” (Complaint, paragraph 1) occurred on the sidewalk
immediately adjacent to the building identified as 49-55 West Long Street, Columbus, Ohio
43215.
RESPONSE;
Objection to the extent that the term “immediately adjacent” is not defined and subject to
interpretation, otherwise admit.
Admit that immediately before and/or at the time of Plaintiff Robert Knobler’s complained-of
July 9, 2012 injury “at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint,
paragraph 1) you were not intending to enter the building identified as 49-55 West Long
Street, Columbus, Ohio 43215,
RESPONSE:
Admit.Franklin C i = : -
ops06 - pan in County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
5. Admit that on July 9, 2012, you were not a tenant of the building identified as 49-55 West
Long Street, Columbus, Ohio 43215.
RESPONSE:
Admit.
6. Admit that immediately before and/or at the time of Plaintiff Robert Knobler’s complained-of
July 9, 2012 injury “at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint,
paragraph 1) you were not intending to patronize any tenant or occupant of the building
identified as 49-55 West Long Street, Columbus, Ohio 43215.
RESPONSE:
Admit.
7. Admit that immediately before and/or at the time of Plaintiff Robert Knobler’s complained-of
July 9, 2012 injury “at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint,
paragraph 1) you were not intending to engage in any business transaction or other activity
with or involving any tenant or occupant of the building identified as 49-55 West Long Street,
Columbus, Ohio 43215.
RESPONSE:
Admit.
8. Admit that immediately before Plaintiff Robert Knobler’s complained-of July 9, 2012 injury
“at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) you were
intending to walk past the building identified as 49-55 West Long Street, Columbus, Ohio
43215.
RESPONSE:
Admit.
9. Admit that the only reason you did not walk past the building identified as 49-55 West Long
Street, Columbus, Ohio 43215 on July 9, 2012 is that Plaintiff Robert Knobler’s sustained
injury complained of in the above captioned case.
RESPONSE:
Deny.Frankli i - : -
ops06 - pee" lin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
10. Admit that on July 9, 2012 your use of the sidewalk immediately adjacent to the building
identified as 49-55 West Long Street, Columbus, Ohio 43215 was not at the express
invitation of Long Street Associates.
RESPONSE:
Admit.
11. Admit that on July 9, 2012 your use of the sidewalk immediately adjacent to the building
identified as 49-55 West Long Street, Columbus, Ohio 43215 was not at the express
invitation of any tenant or occupant of said building.
RESPONSE:
Admit.
12. Admit that on July 9, 2012 your use of the sidewalk immediately adjacent to the building
identified as 49-55 West Long Street, Columbus, Ohio 43215 was a matter of your
convenience or pleasure.
RESPONSE;
Objection. The phrase “matter of your convenience or pleasure” is vague and ambiguous.
Plaintiff admits that she was not required by anyone to use that sidewalk.
13. Admit that the condition of the sidewalk on which you allegedly tripped on July 9, 2012
(Complaint, paragraph 11) was not an obstruction built up on or added above the surface of
said sidewalk.
RESPONSE:
Deny.Frankli i - : -
ops06 - pee lin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
14. Admit that the condition of the sidewalk on which you allegedly tripped on July 9, 2012
(Complaint, paragraph 11) consisted of variations in height below the primary or intended or
originally installed surface of said sidewalk.
RESPONSE:
Plaintiffadmits that the variations included variations in height below the primary or intended
originally installed surface, but denies that the variations were limited to variations in height
below the primary or intended originally installed surface.
15. Admit that the term “cracked” pavement, as used in paragraph 10 of your Complaint, refers to
agap in the surface of the pavement, in which gap the pavement is either missing or sitting at
a lower surface level.
RESPONSE:
Deny.
16. Admit that the term “chipped” pavement, as used in paragraph 10 of your Complaint, refers to
locations on the surface of the pavement where the surface height is lower than intended or
originally installed.
RESPONSE:
Deny.
17. Admit that the term “chipped” pavement, as used in paragraph 10 of your Complaint, refers to
locations on the surface of the pavement where the primary or intended or originally installed
surface of said sidewalk is missing, leaving lower areas of the subsurface pavement exposed.
RESPONSE:
Deny.
18. Admit that the term “divots,” as used in paragraph 10 of your Complaint, refers to low areas
in the surface of the pavement where the primary or intended or originally installed surface of
said sidewalk is missing.
RESPONSE:
Deny.Frankli i - : -
ops06 - poten lin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
19. Admit that the term “uneven pavement” as used in paragraph 10 of your Complaint does not
refer to places where the surface has been built up above the primary or intended or originally
installed surface,
RESPONSE:
Deny.
20. Admit that the condition on which you tripped, as alleged in paragraph 11 of your Complaint,
was a crack, chip, divot, or other low spot in the primary or intended or originally installed
surface of the sidewalk.
RESPONSE:
Deny.
21, Admit that the condition on which you tripped, as alleged in paragraph 11 of your Complaint,
was not a place where the surface of the sidewalk had been built up above the primary or
intended or originally installed surface thereof.
RESPONSE:
Deny.
Respectfully submitted,
/s/ John C. Camillus
John C. Camillus (0077435)
Law Office of John C. Camillus, LLC
P.O. Box 141410
Columbus, Ohio 43214
(614) 558-7254
(614) 559-6731 (Facsimile)
jeamillus@camilluslaw.com
Attorney for PlaintiffsFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
OD506 - D91
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing paper was served on counsel
for Defendants, by email transmission, this 10th day of February, 2017,
/s/ John €, CamillusFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
OD506 - D92
* 900.07 - Sidewalk.
"Sidewalk" means that portion of a street between the curb lines, or the lateral lines of a roadway,
and the adjacent property lines, or easement lines intended for the use of pedestrians.
(ORC 4511.01(FF)) (Ord. 1987-2008 Attach. 1 (part).)Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
OD506 - D93
* 905.01 - Purpose.
The purpose of this code is to protect the health, safety and welfare of all persons by way of
preventing and/or abating hazardous sidewalk, shared-use path and driveway approach conditions
within the public rights-of-way of the city of Columbus by establishing minimum standards relative
to:
(A)
The maintenance and construction of sidewalks, shared-use path and driveway approaches
within the public right-of-way;
(B)
The control and abatement of hazardous sidewalks, shared-use paths and driveway
approaches within the public right-of-way.
(Ord. 588-06 § 2 (part); Ord. 1987-2008 Attach. 1 (part).)Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
OD506 - D94
905.06 - Sidewalk, shared-use path and driveway entrance maintenance and repair.
The abutting private property owner of record shall be responsible for the proper maintenance and
repair of all sidewalks, shared-use paths and driveway entrances within the abutting right-of-way
or easement for any improved or unimproved street, alley, or other public way within the city,
which provides access around, in, or to said private property. For driveway entrances, this includes
any curb, to the nearest tool joint, constructed as a part of, or to accommodate the driveway
entrance. This shall include dropped curb, mountable curb, combination curb and gutter or other
curb condition at the street entrance to the approach, as well as any flairs and radii of the driveway
approach.
All sidewalks, walk paths, curb ramps, and driveway entrances shall be constructed,
reconstructed, and or repaired through the use of Portland Cement Concrete except where existing
sidewalk is composed of alternate materials that have been previously approved by the director, as
outlined within the city's standard construction drawings or, as authorized by the director. All
shared-use paths shall be constructed, reconstructed, and or repaired through the use of either
Portland Cement Concrete or hot mix asphalt concrete except where existing shared-use paths are
composed of alternate materials that have been previously approved by the director, as outlined
within the city's standard construction drawings or, as authorized by the director. Where existing
sidewalks or shared-use paths are composed of alternate city approved materials, they shall be
replaced in kind unless otherwise authorized by the director.
In accordance with Sections 912.10 and_912.11 of Columbus City Code, neither trees, bushes,
nor shrubs located within the public right-of-way or easement may be damaged or removed,
including limbs and roots, to accommodate sidewalk, shared-use path or driveway approach
construction or repair without the prior approval of the recreation and parks department in the
form of a plant “maintenance” or “removal permit."
(Ord. 588-06 § 2 (part); Ord. 1987-2008 Attach. 1 (part); Ord. No, 0128-2009, § 1, 2-9-2009)Frankli i - : -
ops06 - phen lin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
* 905.11 - Code maintenance violation criteria.
No abutting property owner shall allow the condition of the sidewalk, shared-use path, and/or
driveway approach within the public right-of-way or easement to deteriorate beyond the criteria
herein established. Criteria for ordering the replacement or repair of sidewalks, hared~use paths, or
driveway approaches shall be any or all of the conditions described as follows:
Offset of one-half (4) inch or greater;
Crack which has a gap of greater than one-half (¥) inch;
An area where there exists a difference in elevation of material of one-half (2) inch or greater;
Excessive deterioration, spalling or exposed gravel of one-half (2) inch or greater in depth;
Excessive slope caused by a shifting of the sidewalk, shared-use path or driveway approach.
Patching shall not be permitted as a means of eliminating criteria for replacement. The complete
removal or leveling of existing concrete shall be required of a concrete panel from joint to
joint. If a construction tool joint is not present, then the entire area shall be corrected unless
authorized otherwise by the director. Where offsets, elevation differences, deterioration,
and/or spalling exceeds one and one-half (1.5) inches in depth within a sidewalk, shared-use
path or driveway approach, and/or where excessive sidewalk or shared-use path cross slope is
equal to or greater than ten (10) percent, these conditions shall be considered just cause for
emergency barricade and/or repair by the director, as outlined within Section 905.13,
Emergency Orders.
(Ord. 588-06 § 2 (part); Ord. 1987-2008 Attach. 1 (part); Ord. No. 0128-2009, § 1, 2-9-2009)Franklin C i = : -
ops06 - pba in County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755
* 905.12 - Notice of violation.
(A)
Issuance of Notice of Violation. Whenever the director, or the director of the department of
development, determines, or has reasonable grounds to believe, that there exists a condition
that violates any provisions or requirements set forth within this chapter, they may issue a
notice setting forth the alleged violations and advising the abutting property owner or person
having charge that such violations must be corrected.
{B)
Content of Notice of Violation.
(1)
All notices of violation, except emergency orders, shall be in writing and shall be served
on the abutting owner from whom action, forbearance or compliance is required;
(2)
All notices of violation shall identify the sections of this chapter to which the order
applies;
3)
All notices of violation shall provide a description of the premises where the violations
are alleged to exist or to have been committed;
(4)
All notices of violation shall specify a thirty-day time frame for compliance with the
order, except in the case of an emergency order, as described in Section 905.13;
()
All notices of violation shall advise the abutting property owner or person having charge
of the right to appeal, within fifteen (15) days of receipt of notice;
(6)
All notices of violation shall advise the owner or person having charge that if the order is
not complied with by the time specified for compliance, the director may initiate a civil
and/or criminal complaint against the owner or person having charge; and/or the
director may, by city personnel or private contractor, cause the vi
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D6é3 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO Robert Knobler, M.D. Case No, 16CV-005755 Plaintiffs Judge Serrott v. Long Street Associates, et al., Defendants. DEFENDANT LONG STREET ASSOCIATES’ MOTION FOR SUMMARY JUDGMENT Now comes Defendant Long Street Associates, by and through counsel, pursuant to Ohio Rule of Civil Procedure 56, and hereby move this Honorable Court for an order dismissing with prejudice all of Plaintiffs’ claims against it, The relief requested in this Motion is warranted and appropriate for the reasons stated in the attached and incorporated Memorandum in Support. Respectfully submitted, fs! Richard A. Williams RICHARD A. WILLIAMS (0013347) SUSAN S.R. PETRO (0050558) Williams & Schoenberger Co., L.L.C. 338 S. High Street, 2°4 Floor Columbus, OH 43215 Phone: (614) 224-0531/ Fax: (614) 224-0553 Rwilliams@wslegalfirm.com SPetro@wslegalfirm.com Attorney for Defendant Long Street AssociatesFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D6é4 MEMORANDUM IN SUPPORT L. Statement of Facts “This is a refiled case.” (Complaint, caption). Plaintiffs’ refiled their Complaint on June 17, 2016, alleging that “[o]n or about July 9, 2012, Plaintiff Robert Knobler was injured at 49-55 West Long Street, Columbus, Ohio 43215 (hereinafter, “the Property’). Dr. Knobler was injured as he attempted to protect his wife, Plaintiff Jane Knobler, who was falling on the side walk of the above property.” (Complaint, paragraph 1). Plaintiffs assert that Defendant Long Street Associates and/or others negligently maintained the sidewalk, “which caused Plaintiff Jane Knobler to fall despite the fact that she was exercising ordinary care.” (Id. at paragraph 10). However, Plaintiffs are not seeking relief for injuries that Mrs. Knobler sustained. Rather, they seek to recover for injury to Mr. Knobler, who allegedly sustained injury as he attempted to protect Mrs. Knobler and break her fall. (Id. at paragraph 11). Plaintiffs assert claims for premises liability, negligence, and negligence per se, citing both a common law duty to maintain the sidewalk and “duties set forth by Columbus City Code, Chapter 905.” (id. at paragraphs 12, 14, and 15). However, Plaintiffs admit that they were not tenants of, patrons of any tenant of, or business invitees of Defendant Long Street Associates and/or of any tenant of the Property. (Exhibits A and B hereto, Admissions #5, 6, 7, 10, and 11). Plaintiffs further admit that Mr. Knobler’s complained- of injury arose from an incident that occurred outside the Property, on the adjacent sidewalk, as Plaintiffs were walking past, with no intent to enter the Property. (id. at Admissions #1, 2, 3, 4, and 8).Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D6é5 IL. Law and Argument A. Summary Judgment and Negligence, generally Under CivR. 56(C), summary judgment is appropriate if: (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party. Gay St. Polaris, L.L.C. v. Polaris Pediatrics, Inc., 10 Dist. Franklin No. 16AP—360, 2016- Ohio-7576, {] 16 (Nov. 1, 2016), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). Where, as in the present case, the claims sound in negligence, the question of duty is both fundamental to the claims and a legal matter for the court's determination. Wagner v. Ohio State Univ. Med. Cir., 188 Ohio App.3d 65, 2010-Ohio- 2561, 934 N.E.2d 394, §] 22 (10" Dist. 2010) [citations omitted]. In the present case, Defendant Long Street Associates is entitled to summary judgment on all claims asserted against it because: 1) Normally, the owner of property that abuts a public sidewalk is not liable for injuries sustained by pedestrians thereon (the duty to keep streets, including sidewalks, in repair rests upon municipalities and not upon the abutting owners); 2) Applicable Columbus City Code provisions regarding sidewalk maintenance do not alter the prevailing rule or serve as a basis for negligence per se; 3) Irrespective of who bore responsibility for the sidewalk, its condition was open and obvious thereby obviating any duty of care owed; andFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D66 4) Even if Plaintiffs are deemed to have been on Long Street Associates’ premises, they were present as licensees and Long Street Associates did not violate the duty of care owed to them. B. Mr, Knobler sustained injury on_a public sidewalk; therefore, Long Street Associates owed him no duty of care. “{UJnless otherwise established, a sidewalk on a public street is presumed to be within the limits of the public street and under the control of the municipality.” Miller v. Cruickshank, 10" Dist. Franklin No. O6BAP-1088, 2007-Ohio-3055, {] 10 (Jun. 19, 2007), citing Eichorn v. Lustig's, inc., 161 Ohio St. 11, 13, 117 N.E.2d 436 (1954). “As such, the duty to keep streets, including sidewalks, in repair and free from nuisance rests upon a municipality and not the abutting property owners.” Miller, supra at J 10, citing Eichorn, 161 Ohio St. at 13. (Emphasis added). See also, Parrish v. Hayes, 2™ Dist. Montgomery No. 26752, 2015-Ohio-5387, J] 25 (Dec. 23, 2015); Feorene v. Barney, 8" Dist. Cuyahoga No. 97753, 2012-Ohio-3461, J 10 (Aug. 2, 2012); Burgess v. Johnson, 5" Dist. Delaware No. 11CAE050042, 201 1-Ohio-5241, § 14 (Oct. 10, 2011); Pozniak v. Recknagel, 9"" Dist. Lorain 03CA008320, 2004-Ohio-1753, J 13 (Apr. 7, 2004); and Tackett v. Ball, 4" Dist. Jackson No. 97CA822, 1998 WL 670251, *2 (Sept. 23, 1998). In the present case, Plaintiffs were outside 49-55 West Long Street, Columbus, Ohio 43215, on the adjacent sidewalk, walking past the Property when Mr. Knobler fell. (Exhibits A and B hereto, Admissions #1, 2, 3, and 8). Absent evidence of ownership, dominion, or duty otherwise established, Long Street Associates, as the abutting premises owner, is not liable for Ms. Knobler’s fall. Miller, Eichorn, Parrish, Feorene, Burgess, Pozniak, and Tackett, all supra.ops06 - pbpnktin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 There are only three recognized exceptions to the general rule that cities, not abutting property holders, are liable for incidents on sidewalks. Those exceptions arise: 1) Where “a statute or ordinance imposes upon the property owner a specific duty to keep the sidewalk adjoining this property in good repair.” Miller, supra at J 11; 2) When the property owner/occupier property owner “by affirmative acts’ creates or negligently maintains the defective or dangerous condition causing the injury.” /d.; and 3) If “a property owner negligently permits the defective or dangerous condition to exist for some private use or benefit.” /d. None of the foregoing exceptions apply in the present case. Cc. Columbus City Code provisions regarding sidewalk maintenance do not establish negligence per se. City of Columbus Code of Ordinances defines “sidewalk” as “that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, or easement lines intended for the use of pedestrians.” Ord. 900.07. Chapter 905 of the Code of Ordinances exists to protect health and welfare “by way of preventing and/or abating hazardous sidewalk . . . conditions . . . by establishing minimum standards relative to . .. maintenance and construction [and] [t]he control and abatement of hazard[s.]” Ord. 905.01. Consistent with this intent: The abutting private property owner of record shall be responsible for the proper maintenance and repair of all sidewalks .. . within the abutting right- of-way or easement for any improved or unimproved street, alley, or other public way within the city, which provides access around, in, or to said private property. * *** Ord. 905.06. The Code of Ordinances describes the maintenance and repair responsibility as follows:Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D6é8 No abutting property owner shall allow the condition of the sidewalk, shared-use path, and/or driveway approach within the public right-of-way or easement to deteriorate beyond the criteria herein established. Criteria for ordering the replacement or repair of sidewalks, shared-use paths, or driveway approaches shall be any or all of the conditions described as follows: Offset of one-half (7%) inch or greater; Crack which has a gap of greater than one-half (1%) inch; An area where there exists a difference in elevation of material of one- half (%) inch or greater; Excessive deterioration, spalling or exposed gravel of one-half (74) inch or greater in depth; Excessive slope caused by a shifting of the sidewalk, shared-use path or driveway approach. Patching shall not be permitted as a means of eliminating criteria for replacement. The complete removal or leveling of existing concrete shall be required of a concrete panel from joint to joint. If a construction tool joint is not present, then the entire area shall be corrected unless authorized otherwise by the director. Where offsets, elevation differences, deterioration, and/or spalling exceeds one and one-half (1.5) inches in depth within a sidewalk, shared-use path or driveway approach, and/or where excessive sidewalk or shared-use path cross slope is equal to or greater than ten (10) percent, these conditions shall be considered just cause for emergency barricade and/or repair by the director, as outlined within Section 905.13, Emergency Orders. Ord. 905.11. Although the Code of Ordinances authorizes the City to enforce its sidewalk maintenance and repair provisions, it does not create or recognize liability for negligence arising from an abutting property owner's failure to comply. See, Ord. 905.12, 905.13, 905.14, 905.15, and 905.16. The Tenth District Court of Appeais holds that “the failure of an abutting property owner to maintain a sidewalk in good repair in compliance with an ordinance, without more, does not give rise to a right of action on the part of a pedestrian who is injured byFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D69 reason of such defect.” Miller, supra at J 13, citing Yonut v. Salemi, 10" Dist. Franklin No. O5AP-1094, 2006-Ohio-2744, 9] 15-19 (Jun. 1, 2006); and Dennison v. Buckeye Parking Corp., 94 Ohio App. 379, 380-381, 115 N.E.2d 187 (10 Dist. 1953)]. See also, Pozniak, supra at J 18; Tackett, supra at *2; Burgess, supra at J] 22-27; Feorene, supra at ff] 11-13; and Lopatkovich v. Tiffin, 28 Ohio St.3d 204, 207, 503 N.E.2d 154 (1986). The Feorene court declined to find negligence per se even where the applicable local ordinance expressly made the abutting property owner liable for injury resulting from a defect or obstruction in the adjacent sidewalk. Feorene, supra at fff 11-12. The court reasoned that absent advanced notice from the municipality to the property owner of the defect or obligation to repair, the property owner could not be held liable. Feorene, supra at ff] 11-13. No such reasoning is necessary where — as in the present case and Miller, Yonut, Dennison, Pozniak, and Tackett — the local ordinance does not expressly create liability in the abutting property owner. In Pozniak, for example, the court declined the invitation to construe a local ordinance imposing a repair/maintenance responsibility on the abutting property owner to create a duty of care toward pedestrians. The decision states: we will not read such a meaning into this ordinance. This Court has previously noted that a duty to the public at large does not arise from ordinances of this nature; particularly, we found that a similar ordinance does not impose a duty upon abutting landowners to the public to protect them from defects or obstructions that might arise on sidewalks adjacent to their property. Pozniak, supra at J 18, citing Settie v. Palmer, 9'" Dist. Lorain No. 92CA005463, 1993 WL 498212 (Dec. 1, 1993). (Emphasis added). The Tackett court explained that when the clear language of a local ordinance does not, in and of itself, impose civil liability on the abutting property owner for a pedestrianFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D70 who sustains injury on the sidewalk, courts often construe the ordinance language “to impose only a duty to assist the municipality in its responsibility to maintain the public sidewalks.” Tackett, supra at *2. “Further, as a matter of public policy, such statutes are not meant to be used by injured pedestrians to impose potential liability on adjacent property owners.” Id., citing Lopatkovich and Eichorn, both supra. (Emphasis added). The Pozniak and Tackett courts’ reasoning applies with equal force in the present case. As the Tenth District Court of Appeals recognized in Miller, regardless how Plaintiffs may urge otherwise, there is “no basis to part from well-established precedent[.]’ /d. at ] 15. Here, as in Yonut, the only penalty for non-compliance that the ordinance imposes is set forth in the ordinance itself — a fine for each offense, which recurs each day that the violation persists. Yonut, supra at 21; Ord. 905.99. Consequently, property owners like Long Street Associates may be sanctioned by the municipality for violating an ordinance. However, they cannot be held liable in negligence for a pedestrian’s injuries (like those that the Knoblers claim) based on an alleged violation of said ordinance. /d. Under mandatory (Miller, Yonut, Dennison, Eichorn, and Lopatkovich) and persuasive (Feorene, Tackett, Pozniak) precedent, relevant Columbus City ordinances create a duty on the part of abutting property owners to help the City maintain adjacent public sidewalks but no duty to passing pedestrians for injury sustained on sidewaiks not maintained or repaired per applicable ordinances. Therefore, the first exception to Ejichorn's general no-duty rule does not apply here. Absent evidence that Long Street Associates met the second or third exception to the no-duty rule, it cannot be held liable to Plaintiffs for their alleged injuries and damages. Miller, supra at §f 11.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D71 D. Long Street Associates did not affirmatively create or negligently maintain an injurious condition on the adjacent sidewalk. The second exception to Eichorn’s no-duty rule arises when the abutting property owner “by affirmative acts” creates or negligently maintains the complained-of condition in the sidewalk. Miller, supra at J 11. However, the evidence in the present case does not substantiate the affirmative conduct necessary for this exception to apply. “Such evidence must necessarily show that the use of the sidewalk which brought about its disrepair was expressly or impliedly authorized by such owner.” Ejichorn, 161 Ohio St. at 14. As such, the second exception does not apply unless the evidence demonstrates both: 1) that the injurious condition arose out of a “use” of the sidewalk that the abutting property owner authorized; and 2) that said “use” involved “affirmative acts” amounting to the “construction of an obstruction” or negligence “such as constructing a manhole in the sidewalk and leaving it uncovered.” Dennison, 94 Ohio App. at 380. Addressing the second prong of the test, the Milfer court explained: if [the property owner] ran a business out of his home and the passage of automobiles over the sidewalk subjected it to more strenuous usage than mere pedestrian traffic, such would not constitute an “affirmative act” so as to result in liability to [the property owner]. [internal citation omitted]. Moreover, normal wear and tear of a sidewalk, without any ‘affirmative negligence” by the adjacent landowner, will not create liability to_the landowner. Miller, supra at {| 20, citing Purdom v. Sapadin, 111 Ohio App. 488, 168 N.E.2d 558 (4 Dist. 1960); and Dennison. (Emphasis added).Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D72 Applying this understanding of “affirmative acts,” the Miller court held that the facts before it failed to meet the first prong of the second exception standard. Planting a tree near the sidewalk years before the plaintiff tripped on a resulting heave caused by mature tree roots did not constitute a “use” of the sidewalk at all. Miller, supra at J 18. Conversely, neglecting to remove grass growing over a defect in a sidewalk fails to satisfy the second prong of the test because it is insufficiently affirmative in nature. Burgess, supra at {[] 31-32. Instead, the property owner “must actually do something to the sidewalk in order to be liable.” Id., quoting the trial court. (Emphasis added). In the present case, the facts fall short of the second exception standard in both respects. There is no evidence that Long Street Associates made any particular use of the adjacent sidewalk, much less an affirmative use that caused an injurious condition about which Plaintiffs complain. Miller and Burgess, both supra. Certainly, Plaintiffs have not complained that Long Street Associates installed a manhole and then left it uncovered, as the case law mandates for an “affirmative act” sufficient for the second exception to the no-duty rule. Miller, supra at | 19, citing Dennison. Here, as in Miler, “[e]ven if a landowner's use of a sidewaik may have been more severe than ordinary use, that is only a question of degree and does not create liability for the landowner.” Miller, supra at J 20, quoting O'Neal v. Arndt, 6 Dist. Ottawa No. OT-98-035, 1999 WL 436205, *7 (Jun. 30, 1999) [citing Purdom v. Sapadin, 111 Ohio App. 488, 489, 168 N.E.2d 558 (1% Dist. 1960)]. Therefore, the second exception to the Eichorn no-duty rule has no application here. Absent evidence that Long Street Associates met the third exception, it cannot be held liable for Plaintiffs’ claimed damages. Miler, supra at 11. 10Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D73 E. Long Street Associates did _not_negligently permit _an_injurious condition to exist for its use or benefit. The third exception to the Eichorn no-duty rule applies where the property owner negligently permits a defective condition to exist for some private use or benefit. Miller, supra at 911. “[Aln open trap door” qualifies. Eichom, supra. Appropriating a portion of the sidewalk for a coal chute qualifies. Miller, supra at {| 19, citing O’Nea/, supra at *6. However, when the facts fail to demonstrate a benefit to the property owner from the injurious condition or another authorized use that brought the condition about, the third exception to the no-duty rule does not apply. Miller, supra at ] 20. See also, Yonut, supra at J] 20, holding that “fail[ure] to keep their sidewalk in good repair . . . without more, does not confer upon [the plaintiff] the right to bring a negligence against [the property owner;]’ and Burgess, supra at {J 32, holding that the record before it did not demonstrate a use or benefit to the property owner from the growth of grass in the sidewalk. In alike manner, nothing in the evidentiary record in the present case substantiates a use or benefit to Long Street Associates from the deterioration of the adjacent sidewalk over time. Having not appropriated the portion of the sidewalk at issue for any particular purpose, Long Street Associates cannot be held liable for Plaintiffs’ claimed damages absent more than the complained-of failure to maintain the sidewalk in good repair. Eichorn, Miller, O’Neal, Yonut, and Burgess, all supra. The third exception to the no-duty rule does not apply here. Because none of the exceptions apply, the Eichor no-duty rule prevails. Long Street Associates is entitled to summary judgment on Plaintiffs’ claims because Plaintiffs cannot establish that Long Street Associates owed them a duty of care. 1Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D74 F. The sidewaik’s condition was open and obvious thereby obviating any duty of care owed. Even if Plaintiffs’ evidence establishes an exception to the Eichorn rule that an abutting property owner cannot be held liable for injury to a pedestrian on an adjacent sidewalk, the condition of the sidewalk in question was open and obvious, eliminating any duty on Long Street Associates’ part. “The ‘open-and-obvious doctrine relates to the threshold issue of duty in a negligence action.” Watkins v. Scioto Downs, Inc., 10" Dist. Franklin No. 145AP-985, 2016-Ohio-3141, 66 N.E.3d 88, {| 10 (May 24, 2016), quoting Matt v. Ravioli, inc., 8 Dist. Cuyahoga No. 100553, 2014-Ohio-1733, J] 10 (Apr. 24, 2014) [citing Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, J] 13 (2003)}. “tf a condition is open and obvious, ‘the premises owner is absolved from taking any further action to protect the plaintiff.” Watkins, supra at {| 10, quoting Matt, supra at 4 10. Therefore, when the open and obvious doctrine applies, it acts as a complete bar to recovery. /d. The rationale is that the openness and obviousness of the hazard itself is its own warning, alleviating the premises owner/occupier of the duty to offer a warning. Watkins, supra at 10, quoting Price v. Dept. of Rehab & Corr., 10" Dist. Franklin No. 14AP-11, 2014-Ohio-3522, J 10 (Aug. 14, 2014) [additional citations omitted]. Where, as in the present case, there is no evidence to suggest that the condition was obscured, hidden, or latent, “the open and obvious nature of the danger may appropriately be determined as a matter of law.” Price at 11, quoting Mayle v. Ohio Dept. of Rehab. & Corr., 10" Dist. Franklin No. O9AP-541, 2010-Ohio-2774, [19 (Jun. 17, 2010). Therefore, even if Plaintiffs’ claims against Long Street Associates are not precluded by the Eichorn no-duty rule, they are barred by the open and obvious doctrine. 12Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D75 G. if Plaintiffs were on Long Street Associates’ premises, they were present as licensees and Long Street Associates did not violate any duty of care owed to them. Finally, if this Honorable Court finds that Plaintiffs’ claims clear all of the above- described legal hurdles to the establishment of a duty owed, they fail for want of evidence that the duty was breached. Yonut, supra at J] 9-10 and 14. In Ohio, the duty of a property owner to one who enters on the premises is dictated by the plaintiff's status, whether invitee, licensee, or trespasser. /d. at 7.9. “A licensee is a person who enters the premises of another by permission or acquiescence, for his own pleasure or benefit, and not by invitation.” /d. at ]] 10, citing Light v. Ohio Univ., 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986). In the present case, there can be no question that Plaintiffs were licensees on Long Street Associates’ premises, as they were passing by with no intention of entering the building. (Exhibits A and B, Admission #4). Moreover, Plaintiffs admit that they were not tenants of, patrons of any tenant of, or business invitees of Defendant Long Street Associates and/or of any tenant of the Property. (Exhibits A and B hereto, Admissions #5, 6, 7, 10, and 11). “A licensee takes his license subject to its attendant perils and risks. The licensor is not liable for ordinary negligence and owes the licensee no duty except to refrain from wantonly or willfully causing injury.” Light, 28 Ohio St.3d at 68. Where, as in this case, there is no allegation of willful or wanton conduct on the part of the property owner, the claims against it will not lie. Alen v. Rankin, 4" Dist. Pickaway No. 12CA10, 2013-Ohio-456, {| 25 (Jan. 29, 2013), in which — as in the present 13Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D76 case — the plaintiff sought to recover for injuries sustained in a fall on a sidewalk outside a property she was walking pass. Here, as in Alfen, absent an allegation and evidence of willful and wanton conduct, there is no breach of the duty of care owed. Therefore, summary judgment is appropriate. td. at 143. See also, Parrish, supra, at ff] 26 and 28. IV.___ Conclusion For the foregoing reasons, Defendant Long Street Associates respectfully requests that this Honorabie Court grant its Motion for Summary Judgment and dismiss with prejudice all of Plaintiffs’ claims against it. Respectfully submitted, /s/ Richard A. Williams RICHARD A. WILLIAMS (0013347) SUSAN S.R. PETRO (0050558) Williams & Schoenberger Co., L.L.C. 338 S. High Street, 2"4 Floor Columbus, OH 43215 Phone: (614) 224-0531/ Fax: (614) 224-0553 Rwilliams@wslegalfirm.com SPetro@wslegalfirm.com Attorney for Defendant Long Street Associates 14Frankli i - : - ops06 - pan in County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 CERTIFICATE OF SERVICE | certify that a copy of the foregoing document was served via E-Mail on this 20% day of March 2017 upon the following: John C. Camillus Janet R. Hill Arbogast jcamillus@camilluslaw.com jrhillarbogast@columbus.gov Law Office of John C. Camillus, LLC City of Columbus, Department of Law P.O. Box 141410 Richard C. Pfeiffer, Jr. City Attorney Columbus, OH 43214 77 N. Front Street, 4" Floor Attorney for Plaintiffs Columbus, OH 43215 Attorney for Defendant City of Columbus Js/ Richard A. Williams Richard A. Williams, Esq. (0013347) S:FILES\ 4pwi04\RE FILED CASE\MSJ\MSJ.2-22-17.docx 15Franklin C i = : - ops06 - peer in County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO Robert Knobler, M.D., et al. Case No. Plaintiffs, Judge Serrott ve 16 CV 005755 Long Street Associates, et al. Defendants. PLAINTIFF ROBERT KNOBLER’S RESPONSES TO FIRST REQUEST FOR ADMISSIONS Pursuant to Rules 26 and 36 of the Ohio Rules of Civil Procedure, Plaintiff hereby submits his responses and objections to Defendants’ First Set of Interrogatories and Requests for Production of Documents to Plaintiff (the "Discovery Requests"), GENERAL RESPONSES AND OBJECTIONS 1 Plaintiff objects to the Discovery Requests to the extent they seek the disclosure of information which is protected by the attorney-client privilege, the work product doctrine or which is otherwise privileged or protected from disclosure, and will not disclose such information. 2. Plaintiff objects to the Discovery Requests to the extent they seek information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. 3. Plaintiff states that he is responding to the Discovery Requests to the best of his present knowledge, information and belief, and he expressly reserves the right to supplement his responses herein, if necessary. 4, In providing responses to the Discovery Requests, Plaintiff does not waive and expressly reserves all objections as to competency, relevancy, materiality, and admissibility of the answers as well as all objections to any other discovery request.Frankli . . . _ ops06 - page lin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 Subject to the foregoing objections, and to the particularized objections set forth below, plaintiff responds as follows: REQUEST FOR ADMISSIONS 1 Admit that your complained-of July 9, 2012 injury “at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) did not occur inside the building identified as 49-55 West Long Street, Columbus, Ohio 43215. RESPONSE: Admit, 2. Admit that your complained-of July 9, 2012 injury “at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) occurred outside the building identified as 49-55 West Long Street, Columbus, Ohio 43215, RESPONSE: Admit. 3. Admit that your complained-of July 9, 2012 injury “at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) occurred on the sidewalk immediately adjacent to the building identified as 49-55 West Long Street, Columbus, Ohio 43215, RESPONSE: Objection to the extent that the term “immediately adjacent” is not defined and subject to interpretation, otherwise admit. 4. Admit that immediately before and/or at the time of your complained-of July 9, 2012 injury “at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) you were not intending to enter the building identified as 49-55 West Long Street, Columbus, Ohio 43215. RESPONSE: Admit,Franklin C i = : - ops06 - pgm in County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 5. Admit that on July 9, 2012, you were not a tenant of the building identified as 49-55 West Long Street, Columbus, Ohio 43215. RESPONSE: Admit. 6. Admit that immediately before and/or at the time of your complained-of July 9, 2012 injury “at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) you were not intending to patronize any tenant or occupant of the building identified as 49-55 West Long Street, Columbus, Ohio 43215. RESPONSE: Admit. 7. Admit that immediately before and/or at the time of your complained-of July 9, 2012 injury “at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) you were not intending to engage in any business transaction or other activity with or involving any tenant or occupant of the building identified as 49-55 West Long Street, Columbus, Ohio 43215. RESPONSE: Admit. 8. Admit that immediately before your complained-of July 9, 2012 injury “at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) you were intending to walk past the building identified as 49-55 West Long Street, Columbus, Ohio 43215. RESPONSE: Admit. 9 Admit that the only reason you did not walk past the building identified as 49-55 West Long Street, Columbus, Ohio 43215 on July 9, 2012 is that you sustained injury about which you complain in the above captioned case. RESPONSE: Deny.Frankli i - : - ops06 - pgie" in County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 10. Admit that on July 9, 2012 your use of the sidewalk immediately adjacent to the building identified as 49-55 West Long Street, Columbus, Ohio 43215 was not at the express invitation of Long Street Associates. RESPONSE: Admit. 11. Admit that on July 9, 2012 your use of the sidewalk immediately adjacent to the building identified as 49-55 West Long Street, Columbus, Ohio 43215 was not at the express invitation of any tenant or occupant of said building. RESPONSE: Admit. 12. Admit that on July 9, 2012 your use of the sidewalk immediately adjacent to the building identified as 49-55 West Long Street, Columbus, Ohio 43215 was a matter of your convenience or pleasure, RESPONSE: Objection. The phrase “matter of your convenience or pleasure” is vague and ambiguous. Plaintiff admits that he was not required by anyone to use that sidewalk. 13. Admit that the condition of the sidewalk to which you attribute your July 9, 2012 injury was not an obstruction built up on or added above the surface of said sidewalk. RESPONSE: Deny. 14, Admit that the condition of the sidewalk to which you attribute your July 9, 2012 injury consisted of variations in height below the primary or intended or originally installed surface of said sidewalk. RESPONSE: Plaintiff admits that the variations included variations in height below the primary or intended originally installed surface, but denies that the variations were limited to variations in heightFi i i - : - op506 - pgenktin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 below the primary or intended originally installed surface. 15. Admit that the term “cracked” pavement, as used in paragraph 10 of your Complaint, refers to a gap in the surface of the pavement, in which gap the pavement is either missing or sitting at a lower surface level. RESPONSE: Deny. 16. Admit that the term “chipped” pavement, as used in paragraph 10 of your Complaint, refersto locations on the surface of the pavement where the surface height is lower than intended or originally installed. RESPONSE: Deny. 17. Admit that the term “chipped” pavement, as used in paragraph 10 of your Complaint, refers to locations on the surface of the pavement where the primary or intended or originally installed surface of said sidewalk is missing, leaving lower areas of the subsurface pavement exposed. RESPONSE: Deny. 18. Admit that the term “divots,” as used in paragraph 10 of your Complaint, refers to low areas in the surface of the pavement where the primary or intended or originally installed surface of said sidewalk is missing. RESPONSE: Deny. 19. Admit that the term “uneven pavement” as used in paragraph 10 of your Complaint does not refer to places where the surface has been built up above the primary or intended or originally installed surface. RESPONSE:Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D83 Deny. Respectfully submitted, /s/ John C. Camillus John C. Camillus (0077435) Law Office of John C. Camillus, LLC P.O. Box 141410 Columbus, Ohio 43214 (614) 558-7254 (614) 559-6731 (Facsimile) jeamillus@camilluslaw.com Attorney for PlaintiffsFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D84 CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing paper was served on counsel for Defendants, by email transmission, this 10th day of February, 2017. /s/ John C. Camillusops06 - pgenktin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO Robert Knobler, M.D., et al. : 3 Case No. Plaintiffs, : : Judge Serrott v : : 16 CV 005755 Long Street Associates, et al. Defendants. : PLAINTIFF JANE KNOBLER’S RESPONSES TO FIRST REQUEST FOR ADMISSIONS Pursuant to Rules 26 and 36 of the Ohio Rules of Civil Procedure, Plaintiff hereby submits her responses and objections to Defendants’ First Set of Interrogatories and Requests for Production of Documents to Plaintiff (the "Discovery Requests"). GENERAL RESPONSES AND OBJECTIONS 1. Plaintiff objects to the Discovery Requests to the extent they seek the disclosure of information which is protected by the attorney-client privilege, the work product doctrine or which is otherwise privileged or protected from disclosure, and will not disclose such information. 2. Plaintiff objects to the Discovery Requests to the extent they seek information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, 3. Plaintiff states that she is responding to the Discovery Requests to the best of his present knowledge, information and belief, and he expressly reserves the right to supplement his responses herein, if necessary. 4, In providing responses to the Discovery Requests, Plaintiff does not waive and expressly reserves all objections as to competency, relevancy, materiality, and admissibility of the answers as well as all objections to any other discovery request.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D86 Subject to the foregoing objections, and to the particularized objections set forth below, Plaintiff responds as follows: 3. REQUEST FOR ADMISSIONS Admit that Plaintiff Robert Knobler’s complained-of July 9, 2012 injury “at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) did not occur inside the building identified as 49-55 West Long Street, Columbus, Ohio 43215. RESPONSE: Admit, Admit that Plaintiff Robert Knobler’s complained-of July 9, 2012 injury “at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) occurred outside the building identified as 49-55 West Long Street, Columbus, Ohio 43215. RESPONSE: Admit. Admit that Plaintiff Robert Knobler’s complained-of July 9, 2012 injury “at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) occurred on the sidewalk immediately adjacent to the building identified as 49-55 West Long Street, Columbus, Ohio 43215. RESPONSE; Objection to the extent that the term “immediately adjacent” is not defined and subject to interpretation, otherwise admit. Admit that immediately before and/or at the time of Plaintiff Robert Knobler’s complained-of July 9, 2012 injury “at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) you were not intending to enter the building identified as 49-55 West Long Street, Columbus, Ohio 43215, RESPONSE: Admit.Franklin C i = : - ops06 - pan in County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 5. Admit that on July 9, 2012, you were not a tenant of the building identified as 49-55 West Long Street, Columbus, Ohio 43215. RESPONSE: Admit. 6. Admit that immediately before and/or at the time of Plaintiff Robert Knobler’s complained-of July 9, 2012 injury “at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) you were not intending to patronize any tenant or occupant of the building identified as 49-55 West Long Street, Columbus, Ohio 43215. RESPONSE: Admit. 7. Admit that immediately before and/or at the time of Plaintiff Robert Knobler’s complained-of July 9, 2012 injury “at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) you were not intending to engage in any business transaction or other activity with or involving any tenant or occupant of the building identified as 49-55 West Long Street, Columbus, Ohio 43215. RESPONSE: Admit. 8. Admit that immediately before Plaintiff Robert Knobler’s complained-of July 9, 2012 injury “at 49-55 West Long Street, Columbus, Ohio 43215” (Complaint, paragraph 1) you were intending to walk past the building identified as 49-55 West Long Street, Columbus, Ohio 43215. RESPONSE: Admit. 9. Admit that the only reason you did not walk past the building identified as 49-55 West Long Street, Columbus, Ohio 43215 on July 9, 2012 is that Plaintiff Robert Knobler’s sustained injury complained of in the above captioned case. RESPONSE: Deny.Frankli i - : - ops06 - pee" lin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 10. Admit that on July 9, 2012 your use of the sidewalk immediately adjacent to the building identified as 49-55 West Long Street, Columbus, Ohio 43215 was not at the express invitation of Long Street Associates. RESPONSE: Admit. 11. Admit that on July 9, 2012 your use of the sidewalk immediately adjacent to the building identified as 49-55 West Long Street, Columbus, Ohio 43215 was not at the express invitation of any tenant or occupant of said building. RESPONSE: Admit. 12. Admit that on July 9, 2012 your use of the sidewalk immediately adjacent to the building identified as 49-55 West Long Street, Columbus, Ohio 43215 was a matter of your convenience or pleasure. RESPONSE; Objection. The phrase “matter of your convenience or pleasure” is vague and ambiguous. Plaintiff admits that she was not required by anyone to use that sidewalk. 13. Admit that the condition of the sidewalk on which you allegedly tripped on July 9, 2012 (Complaint, paragraph 11) was not an obstruction built up on or added above the surface of said sidewalk. RESPONSE: Deny.Frankli i - : - ops06 - pee lin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 14. Admit that the condition of the sidewalk on which you allegedly tripped on July 9, 2012 (Complaint, paragraph 11) consisted of variations in height below the primary or intended or originally installed surface of said sidewalk. RESPONSE: Plaintiffadmits that the variations included variations in height below the primary or intended originally installed surface, but denies that the variations were limited to variations in height below the primary or intended originally installed surface. 15. Admit that the term “cracked” pavement, as used in paragraph 10 of your Complaint, refers to agap in the surface of the pavement, in which gap the pavement is either missing or sitting at a lower surface level. RESPONSE: Deny. 16. Admit that the term “chipped” pavement, as used in paragraph 10 of your Complaint, refers to locations on the surface of the pavement where the surface height is lower than intended or originally installed. RESPONSE: Deny. 17. Admit that the term “chipped” pavement, as used in paragraph 10 of your Complaint, refers to locations on the surface of the pavement where the primary or intended or originally installed surface of said sidewalk is missing, leaving lower areas of the subsurface pavement exposed. RESPONSE: Deny. 18. Admit that the term “divots,” as used in paragraph 10 of your Complaint, refers to low areas in the surface of the pavement where the primary or intended or originally installed surface of said sidewalk is missing. RESPONSE: Deny.Frankli i - : - ops06 - poten lin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 19. Admit that the term “uneven pavement” as used in paragraph 10 of your Complaint does not refer to places where the surface has been built up above the primary or intended or originally installed surface, RESPONSE: Deny. 20. Admit that the condition on which you tripped, as alleged in paragraph 11 of your Complaint, was a crack, chip, divot, or other low spot in the primary or intended or originally installed surface of the sidewalk. RESPONSE: Deny. 21, Admit that the condition on which you tripped, as alleged in paragraph 11 of your Complaint, was not a place where the surface of the sidewalk had been built up above the primary or intended or originally installed surface thereof. RESPONSE: Deny. Respectfully submitted, /s/ John C. Camillus John C. Camillus (0077435) Law Office of John C. Camillus, LLC P.O. Box 141410 Columbus, Ohio 43214 (614) 558-7254 (614) 559-6731 (Facsimile) jeamillus@camilluslaw.com Attorney for PlaintiffsFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D91 CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing paper was served on counsel for Defendants, by email transmission, this 10th day of February, 2017, /s/ John €, CamillusFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D92 * 900.07 - Sidewalk. "Sidewalk" means that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, or easement lines intended for the use of pedestrians. (ORC 4511.01(FF)) (Ord. 1987-2008 Attach. 1 (part).)Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D93 * 905.01 - Purpose. The purpose of this code is to protect the health, safety and welfare of all persons by way of preventing and/or abating hazardous sidewalk, shared-use path and driveway approach conditions within the public rights-of-way of the city of Columbus by establishing minimum standards relative to: (A) The maintenance and construction of sidewalks, shared-use path and driveway approaches within the public right-of-way; (B) The control and abatement of hazardous sidewalks, shared-use paths and driveway approaches within the public right-of-way. (Ord. 588-06 § 2 (part); Ord. 1987-2008 Attach. 1 (part).)Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 OD506 - D94 905.06 - Sidewalk, shared-use path and driveway entrance maintenance and repair. The abutting private property owner of record shall be responsible for the proper maintenance and repair of all sidewalks, shared-use paths and driveway entrances within the abutting right-of-way or easement for any improved or unimproved street, alley, or other public way within the city, which provides access around, in, or to said private property. For driveway entrances, this includes any curb, to the nearest tool joint, constructed as a part of, or to accommodate the driveway entrance. This shall include dropped curb, mountable curb, combination curb and gutter or other curb condition at the street entrance to the approach, as well as any flairs and radii of the driveway approach. All sidewalks, walk paths, curb ramps, and driveway entrances shall be constructed, reconstructed, and or repaired through the use of Portland Cement Concrete except where existing sidewalk is composed of alternate materials that have been previously approved by the director, as outlined within the city's standard construction drawings or, as authorized by the director. All shared-use paths shall be constructed, reconstructed, and or repaired through the use of either Portland Cement Concrete or hot mix asphalt concrete except where existing shared-use paths are composed of alternate materials that have been previously approved by the director, as outlined within the city's standard construction drawings or, as authorized by the director. Where existing sidewalks or shared-use paths are composed of alternate city approved materials, they shall be replaced in kind unless otherwise authorized by the director. In accordance with Sections 912.10 and_912.11 of Columbus City Code, neither trees, bushes, nor shrubs located within the public right-of-way or easement may be damaged or removed, including limbs and roots, to accommodate sidewalk, shared-use path or driveway approach construction or repair without the prior approval of the recreation and parks department in the form of a plant “maintenance” or “removal permit." (Ord. 588-06 § 2 (part); Ord. 1987-2008 Attach. 1 (part); Ord. No, 0128-2009, § 1, 2-9-2009)Frankli i - : - ops06 - phen lin County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 * 905.11 - Code maintenance violation criteria. No abutting property owner shall allow the condition of the sidewalk, shared-use path, and/or driveway approach within the public right-of-way or easement to deteriorate beyond the criteria herein established. Criteria for ordering the replacement or repair of sidewalks, hared~use paths, or driveway approaches shall be any or all of the conditions described as follows: Offset of one-half (4) inch or greater; Crack which has a gap of greater than one-half (¥) inch; An area where there exists a difference in elevation of material of one-half (2) inch or greater; Excessive deterioration, spalling or exposed gravel of one-half (2) inch or greater in depth; Excessive slope caused by a shifting of the sidewalk, shared-use path or driveway approach. Patching shall not be permitted as a means of eliminating criteria for replacement. The complete removal or leveling of existing concrete shall be required of a concrete panel from joint to joint. If a construction tool joint is not present, then the entire area shall be corrected unless authorized otherwise by the director. Where offsets, elevation differences, deterioration, and/or spalling exceeds one and one-half (1.5) inches in depth within a sidewalk, shared-use path or driveway approach, and/or where excessive sidewalk or shared-use path cross slope is equal to or greater than ten (10) percent, these conditions shall be considered just cause for emergency barricade and/or repair by the director, as outlined within Section 905.13, Emergency Orders. (Ord. 588-06 § 2 (part); Ord. 1987-2008 Attach. 1 (part); Ord. No. 0128-2009, § 1, 2-9-2009)Franklin C i = : - ops06 - pba in County Ohio Clerk of Courts of the Common Pleas- 2017 Mar 20 10:17 AM-16CV005755 * 905.12 - Notice of violation. (A) Issuance of Notice of Violation. Whenever the director, or the director of the department of development, determines, or has reasonable grounds to believe, that there exists a condition that violates any provisions or requirements set forth within this chapter, they may issue a notice setting forth the alleged violations and advising the abutting property owner or person having charge that such violations must be corrected. {B) Content of Notice of Violation. (1) All notices of violation, except emergency orders, shall be in writing and shall be served on the abutting owner from whom action, forbearance or compliance is required; (2) All notices of violation shall identify the sections of this chapter to which the order applies; 3) All notices of violation shall provide a description of the premises where the violations are alleged to exist or to have been committed; (4) All notices of violation shall specify a thirty-day time frame for compliance with the order, except in the case of an emergency order, as described in Section 905.13; () All notices of violation shall advise the abutting property owner or person having charge of the right to appeal, within fifteen (15) days of receipt of notice; (6) All notices of violation shall advise the owner or person having charge that if the order is not complied with by the time specified for compliance, the director may initiate a civil and/or criminal complaint against the owner or person having charge; and/or the director may, by city personnel or private contractor, cause the vi