Emmerling v. Mahoning Cnty. Bd. of Comm'rs
101 N.E.3d 988
Oh. Ct. App. 7th Dist. Mahonin...2017Background
- On March 21, 2012 Robert Emmerling (motorcyclist) was struck and killed when a minivan driven by Alex Tareshawty turned left from McClurg Road onto South Avenue and collided with Emmerling.
- Three signs (two-way left turn sign, hospital sign, and a hospital directional arrow) were mounted on two posts near the intersection; the hospital and arrow signs were mounted below the OMUTCD-recommended heights.
- Mahoning County had received a 2010 DLZ safety study recommending the signs be moved; county traffic engineer directed relocation but the signs were not moved until after the 2012 crash.
- Plaintiff (Maureen Emmerling, personal representative) sued the Mahoning County Board of Commissioners for wrongful death, alleging the signs (placed contrary to OMUTCD) obstructed the van driver’s view and proximately caused the crash.
- The trial court granted summary judgment for the County on sovereign immunity and lack of proximate cause; the majority of the appellate court affirmed, finding the signs were discretionary and plaintiff’s causation evidence speculative; Judge Donofrio dissented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether County immunity is excepted under R.C. 2744.02(B)(3) because the signs are "traffic control devices" mandated by OMUTCD | Hospital sign (and attendant directional sign) are mandatory under OMUTCD, so traffic control devices become part of "public roads," triggering the repair/obstruction exception | Signs are not mandatory under OMUTCD (they fall in a non-mandatory "Support" category); placement was discretionary, so R.C. 2744.02(B)(3) does not apply | Held: signs were not mandatory under OMUTCD; immunity exception did not apply (majority) |
| If signs were mandatory, whether County still protected by discretionary-act defenses (R.C. 2744.03(A)(3),(5)) | Once a noncompliant sign was identified, relocation/correction was a ministerial repair-type duty not protected by discretionary-act immunity | Relocation and sign placement involve planning/engineering discretion; DLZ recommendation showed the change was discretionary; discretionary-act defenses apply | Held: even if mandatory, County would be immune under discretionary-act defenses (majority) |
| Whether placement/height of signs constitutes keeping a public road "in repair" under R.C. 2744.02(B)(3) | Improperly installed sign can be a negligent failure to keep the public road in repair and thus fall within the statutory exception | "In repair" relates to maintenance after deterioration (holes, crumbling pavement); sign placement/design is construction/designal/discretionary, not repair | Held: "in repair" does not extend to sign-placement/design here; signs not within that duty (majority) |
| Whether there is a genuine issue of material fact on proximate cause (did signs obstruct driver’s view?) | Expert (Sutton) opines signs blocked the van driver's sight at the critical moment; DLZ and height evidence support that jury could credit obstruction causation | The van driver testified signs/phone poles did not obstruct his view; expert opinion is speculative and contradicted by eyewitness testimony; no proximate cause | Held: Plaintiff’s expert is speculative and contradicted by eyewitness testimony; no genuine issue of material fact on causation (majority); dissent would find triable issues on causation and delay to move signs |
Key Cases Cited
- Baker v. Wayne Cty., 147 Ohio St.3d 51 (statutory framework for political subdivision immunity under R.C. 2744)
- Heckert v. Patrick, 15 Ohio St.3d 402 (interpretation of "in proper repair" as relating to maintenance after deterioration)
- Franks v. Lopez, 69 Ohio St.3d 345 (application of discretionary-act immunity to sign-related decisions)
- Lumbermens Mut. Cas. Co. v. Ohio Dept. of Transp., 49 Ohio App.3d 129 (OMUTCD "shall" language can mandate accompanying devices once a device is installed)
- Webb v. Edwards, 165 Ohio App.3d 158 (OMUTCD uses "shall/should/may" to distinguish mandatory/advisory/permissive provisions)
- Deitz v. Harshbarger, 89 N.E.3d 1271 (stop sign not mandated by OMUTCD; discretionary erection of sign does not trigger R.C. 2744.02(B)(3) exception)