[Cite as Girdler v. Libassi,
2022-Ohio-1846.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
ANNETTE GAYLE GIRDLER, :
Plaintiff-Appellant, :
No. 111111
v. :
PATRICIA D. LIBASSI, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 2, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-20-932830
Appearances:
Tayfel & Associates, LLC, and Eric W. Tayfel, for
appellant.
Pilawa & Brennan Co., LPA, Kimberly A. Brennan, and
Dennis M. Pilawa, for appellees.
EILEEN T. GALLAGHER, J.:
Plaintiff-appellant, Annette Gayle Girdler (“Girdler”), appeals an order
granting summary judgment in favor of defendants-appellees, Patricia D. Libassi
and Philip S. Libassi (collectively “the Libassis”). Girdler claims the following two
errors:
1. The trial court erred as a matter of law in granting defendant-appellees’ motion for summary judgment when defendant-appellees
were aware of a dangerous condition on their property and
affirmatively acted to maintain the dangerous condition which caused
plaintiff-appellant’s injury.
2. The trial court erred as a matter of law [by] concluding that the
height difference between two squares of concrete sidewalk was
conclusively less than two inches and therefore an insubstantial defect.
After reviewing the record and applicable law, we affirm the trial court’s
judgment.
I. Facts and Procedural History
Girdler filed a complaint against the Libassis for personal injuries she
sustained after she tripped and fell on a public sidewalk in front of the Libassis’
home. Girdler alleged that she tripped and fell on the sidewalk because the Libassis
negligently allowed grass to grow between the sidewalk squares and the grass
concealed a difference in height between the two squares. She asserted that the
Libassis negligently failed to maintain the sidewalk in a safe condition and
negligently failed to warn her of the hazardous condition.
After answering the complaint and conducting discovery, the Libassis
filed a motion for summary judgment, arguing that it is the municipality, not the
owner of the adjacent property, that has the duty to maintain public sidewalks in a
safe condition. They further argued that private homeowners are not responsible
for an adjacent sidewalk’s condition unless one of three exceptions applies: (1) a
statute or ordinance imposed a specific duty on the property owner to maintain the
sidewalk in good repair, (2) “‘by affirmative acts [the property owner] created or
negligently maintained the defective or dangerous condition causing the injury’”; or
(3) the property owner “‘negligently permitted the defective or dangerous condition
to exist for some private use or benefit.’” (Defendants’ motion for summary
judgment p. 5, quoting Donnelly v. Berea, 8th Dist. Cuyahoga No. 108753, 2020-
Ohio-2722, ¶ 13.) The Libassis argued that because none of the exceptions were
applicable in this case, they were entitled to judgment as a matter of law. They also
argued that the height deviation between the two sidewalk squares was less than two
inches and the condition on the sidewalk was open and obvious, thus absolving them
of liability.
Girdler filed a cross-motion for partial summary judgment, arguing the
Libassis knew the sidewalk was uneven and that grass growing between the slabs of
concrete concealed the difference in elevation of the sidewalk near where Girdler
tripped and fell. She further asserted that although private homeowners generally
have no duty to maintain public sidewalks, the Libassis were liable for her injuries
because they created or negligently maintained a dangerous condition that
proximately caused her injury.
The trial court granted the Libassis’ motion for summary judgment on
the grounds that none of the three exceptions enumerated in Donnelly, which confer
liability on private property owners, were applicable. The trial court also found that
the difference in elevation of the sidewalk squares measured less than two inches
and there were no attendant circumstances that would turn an otherwise minor
defect into a substantial or dangerous condition. By granting the Libassis’ motion
for summary judgment in total, it implicitly overruled Girdler’s partial motion for
summary judgment. Girdler now appeals the trial court’s judgment.
II. Law and Analysis
A. Standard of Review
Appellate review of summary judgments is de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105,
671 N.E.2d 241 (1996). Pursuant to Civ.R. 56(C),
summary judgment is appropriate when (1) there is no genuine issue of material
fact; (2) the moving party is entitled to judgment as a matter of law; and (3)
reasonable minds can come to but one conclusion and that conclusion is adverse to
the nonmoving party, said party being entitled to have the evidence construed most
strongly in his or her favor. Horton v. Harwick Chem. Corp.,
73 Ohio St.3d 679,
653 N.E.2d 1196 (1995), paragraph three of the syllabus; Zivich v. Mentor Soccer
Club,
82 Ohio St.3d 367,
696 N.E.2d 201 (1998).
B. Affirmative Act of Negligence
In the first assignment of error, Girdler argues the trial court erred in
granting the Libassis’ motion for summary judgment on her negligence claim
because the evidence showed that they were aware of a dangerous condition and
affirmatively acted to maintain the dangerous condition.
To prevail on a negligence claim, Girdler had to establish that the
Libassis owed her a duty, that they breached that duty, and that the breach of that
duty proximately caused her injuries. Tyler v. Cleveland, 129 Ohio App.3d 441, 444,
717 N.E.2d 1175 (8th Dist.1998). In this case, the trial court found that the Libassis
did not owe Girdler a duty of care to maintain the sidewalk in good repair.
Sidewalks on public streets are presumed to be “under the control of
the municipality or public authority.” Eichorn v. Lustig’s, Inc., 161 Ohio St. 11, 13,
117 N.E.2d 436 (1954). Thus, abutting landowners generally owe no duty to
pedestrians for the condition of a public sidewalk.
Id. However, there are
exceptions to the general rule propounded in Eichorn, and adjacent property owners
may be liable for injuries sustained on public sidewalks if one of three exceptions
applies: (1) a statute or ordinance imposes a duty on the property owner to keep the
sidewalks in good repair; (2) “by affirmative acts,” the property owner created or
negligently maintained a defective or dangerous condition that caused injury; or (3)
the property owner negligently allowed the defective or dangerous condition to exist
“‘for some private use or benefit.’” Donnelly, 8th Dist. Cuyahoga No. 108753, 2020-
Ohio-2722, at ¶ 14, quoting Crowe v. Hoffman,
13 Ohio App.3d 254, 255-256,
468
N.E.2d 1120 (6th Dist.1983).
It is undisputed that Girdler tripped and fell on a public sidewalk. And,
Girdler concedes there is no evidence that the Libassis created the uneven sidewalk.
She nevertheless argues the Libassis are liable for her injuries pursuant to the
second exception to the Eichorn rule,1 which holds that adjacent property owners
may be liable for injuries sustained on public sidewalks if, by affirmative acts, they
1 Girdler makes no argument that either the first or third exceptions to the Eichorn
rule apply in this case. We, therefore, focus solely on the second exception as argued in
Girdler’s merit brief.
created or negligently maintained a dangerous condition that proximately caused
the plaintiff’s injury. Donnelly at ¶ 14, 22.
However, for this exception to apply, the dangerous condition “‘cannot
be the result of ordinary wear and tear but must [be] due to some affirmative
misconduct by the landowner.’” Id. at ¶ 22, quoting Guder v. Kuhr, 1st Dist.
Hamilton Nos. C-940517, C-940521, and C-940539, 1995 Ohio App. LEXIS 3107, 8
(July 26, 1995). “Such evidence must necessarily show that the use of the sidewalk
which brought about its disrepair was expressly or impliedly authorized by such
owner.”
Eichorn at 14. “‘Affirmative acts’ have been described as the ‘construction
of an obstruction, or that the defect was created by the affirmative negligence of the
defendant, such as constructing a manhole in the sidewalk and leaving it
uncovered.’” Burgess v. Johnson, 5th Dist. Delaware No. 11CAE050042, 2011-Ohio-
5241, ¶ 28, quoting Dennison v. Buckeye Parking Corp.,
94 Ohio App. 379, 380-
381,
115 N.E.2d 187 (10th Dist.1953).
Girdler argues the Libassis negligently maintained a dangerous
condition on the sidewalk by allowing grass to grow over uneven concrete and
conceal the difference in elevation between the sidewalk squares. She asserts “[t]he
negligent maintenance of the condition occurred when Defendant Philip Libassi
would run his lawnmower over the grass while cutting the lawn.” (Appellant’s brief
p. 8.) Viewing these facts in a light most favorable to Girdler, we find the mere act
of lawnmowing does not rise to the level of an “affirmative act” of negligence that
creates a dangerous condition as required for the second exception to apply. As the
court in Burgess observed:
[T]he Eichorn rule requires something more than mere neglect in
allowing grass to grow in a sidewalk. The homeowner must actually do
something to the sidewalk in order to be liable. … Allowing grass to
grow and hide a defect is not negligent maintenance of a sidewalk, but
failure to trim grass or weeds. …
[T]he natural occurrence of grass and weeds sprouting in the sidewalk
crack is not tantamount to “negligently permitting” a defect as
annunciated in Eichorn.
Burgess at ¶ 31-32.
There is no evidence that the Libassis committed an affirmative act
that created or negligently maintained a dangerous condition on the sidewalk. We
agree with the court in Burgess that the natural occurrence of grass or weeds
growing in sidewalk cracks does not amount to an affirmative act of negligence as
contemplated by Eichorn. We, therefore, overrule the first assignment of error.
In the second assignment of error, Girdler argues the trial court erred
in concluding that the height difference between the two squares of concrete
sidewalk was less than two inches and was, therefore, an insignificant defect.
However, having determined that the Libassis were not responsible for the
condition of the sidewalk where Girdler fell, the second assignment of error is moot.
Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry
this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
ANITA LASTER MAYS, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR
