2005 Ohio 1935 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 3} This Appellant was joined as a defendant based on the assertions that the vision of Sarah Allender as to the stop sign was obscured by bushes or trees which this Appellant was required to trim.
{¶ 4} Appellant, as stated, filed a motion for summary judgment and a motion to strike certain affidavits submitted by Plaintiff-Appellee which were denied.
{¶ 5} The Assignments of Error are:
{¶ 7} "II. The trial court erred in denying summary judgment to defendant-appellant as the plaintiff-appellee failed to demonstrate a factual controversy to sustain his negligence claim."
{¶ 9} Normally, the denial of a motion for summary judgment does not constitute a final appealable order under R.C.
{¶ 10} However, R.C.
{¶ 11} "An order that denies a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order."
{¶ 12} We therefore must review de novo those matters before the trial court to determine the applicability of sovereign immunity to the facts involved before the question as to the appropriateness of this appeal can be resolved.
{¶ 13} R.C. 2744 provides a three-tiered analysis for determining the availability of sovereign immunity to political subdivisions. R.C.
{¶ 14} R.C.
{¶ 15} Subsection (B)(3) of such Section provides:
{¶ 16} Except as otherwise provided in section
{¶ 17} Thus after examining those matters specified by Civ.R. 56 de novo, we conclude that, if Appellee is able to establish the facts, proximate cause, liability and damages alleged, immunity would not be applicable under the exception stated in R.C.
{¶ 18} Therefore, the second assignment of error is rejected.
{¶ 19} It is unnecessary by this ruling to address the First Assignment of Error.
{¶ 20} This appeal is affirmed at Appellant Stark County Board of Commissioner's costs.
By: Boggins, P.J., Hoffman, J., dissents without opinion, Farmer, J. concurs separately.
Concurrence Opinion
{¶ 21} Although I concur in the majority's decision, that sovereign immunity does not apply sub judice, I believe it is important to discuss the nature of the proffered defense by appellant.
{¶ 22} Under a summary judgment standard, all evidentiary facts are to be construed in favor of the non-moving party, appellee herein. The facts that must be so construed include the testimony of Sarah Allender which indicates she did not see the stop sign until it was too late to avoid the collision. Ms. Allender stated she did not see the stop sign because it was obscured by bushes. See, Exhibits C and D, attached to Appellee's September 9, 2004 Memorandum in Opposition to Motion for Summary Judgment.
{¶ 23} In addition, appellant admitted in its answers to interrogatories that it regularly inspected the shrubs in the vicinity of the intersection. See, Exhibit E, attached to Appellee's September 9, 2004 Memorandum in Opposition to Motion for Summary Judgment. Further, the county engineer could not say with certainty whether the foliage at the intersection had ever been trimmed. Rehfus depo. at 63.
{¶ 24} Therefore, I would conclude the defense of sovereign immunity does not apply because there are genuine issues of material fact. R.C.
{¶ 25} bootstrapped into the mandates of automatic appeal and is not a final appealable order. See, R.C.
Dissenting Opinion
{¶ 25} I concur in the majority's decision to overrule appellant's second assignment of error for the reasons set forth in Judge Farmer's concurring opinion.
{¶ 26} I dissent from the majority's conclusion its decision to overrule appellant's first assignment of error renders it unnecessary to address appellant's first assignment of error.