2022 Ohio 338
Ohio Ct. App.2022Background
- Plaintiffs Joseph and Peggy Volny sued Portage County and county officials after Joseph Volny’s motorcycle crashed on Parkman Road, allegedly when his front wheel hit a large hole in an asphalt-filled trench left between two phases of a county pipe replacement project.
- County employees performed phase one (excavation, pipe installation, backfill with asphalt grindings) on June 13 and left the site to settle; phase two (paving) occurred July 2–3. The crash occurred June 28 while the site awaited final paving.
- Eyewitness testimony and the Ohio State Highway Patrol report described a large hole/ditch and loose asphalt debris in the repaired area; a bump sign was present but plaintiffs say no construction signs were posted.
- Volny suffered serious injuries; plaintiffs alleged the county negligently failed to keep the public road in repair and failed to remove obstructions.
- The county moved for summary judgment asserting political-subdivision immunity under R.C. Chapter 2744, arguing the road was “in repair,” any condition was a design/construction issue, and the discretionary-act defense applied; the trial court denied the motion.
- The county appealed the denial of immunity; the appellate court reviewed de novo and affirmed, finding factual disputes on the "in repair" exception and that the discretionary-act defense did not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of R.C. 2744.02(B)(3) "in repair" exception | Volny: the asphalt-filled trench developed a hole/deterioration during ongoing repair, so road was not "in repair" and exception applies | County: the site was mid-repair (construction), not a state of deterioration; thus exception doesn't apply | Held: Genuine factual disputes exist re: hole/deterioration; exception can apply during ongoing construction—summary judgment denied |
| Whether ongoing construction precludes "in repair" exception | Volny: partial repairs that create hazards fall within exception | County: incomplete construction is not a failure to keep road "in repair" | Held: Ongoing construction does not automatically preclude the exception; a temporary repair causing a hazard may trigger it |
| Whether alleged problem is a design/construction flaw (not "in repair") | Volny: the condition was a temporary defect/deterioration, not a design feature | County: condition resulted from construction technique/design—"in repair" exception shouldn't cover design choices | Held: Distinction matters; the temporary asphalt fill was a condition, not a road design feature, so the exception can apply |
| Applicability of R.C. 2744.03(A)(5) discretionary-act defense | Volny: potholes and similar hazards are non-discretionary maintenance matters; no judgmental immunity | County: decisions about materials/methods, sign placement, and resource allocation were discretionary | Held: Discretionary-act defense inapplicable—repair of discoverable hazards (e.g., potholes) involves no governmental discretion; immunity defense fails as a matter of law |
Key Cases Cited
- Pelletier v. Campbell, 153 Ohio St.3d 611 (2018) (de novo review standard for denial of political-subdivision immunity and framework for R.C. Chapter 2744 analysis)
- Franks v. Lopez, 69 Ohio St.3d 345 (1994) (potholes and similar roadway hazards are discoverable, non-discretionary maintenance matters; removal required)
- Heckert v. Patrick, 15 Ohio St.3d 402 (1984) (interpreting "in proper repair" as addressing deterioration or disassembly of roads/bridges)
- Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1 (2008) (statutory amendment context replacing "nuisance" language with "obstructions" in R.C. 2744.02(B)(3))
- Bonace v. Springfield Twp., 179 Ohio App.3d 736 (2008) ("in repair" exception does not impose a duty to alter road design; distinguishes design defects from maintenance/repair conditions)