Dietz v. HarshbargerDietz v. Harshbarger
Case Information
*1
[Cite as
Dietz v. Harshbarger
,
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY
PAUL DEITZ, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 17-16-21 v.
HENRY L. HARSHBARGER, ET AL., O P I N I O N DEFENDANTS-APPELLEES.
Appeal from Shelby County Common Pleas Court
Trial Court No. 14CV000145 Judgment Affirmed
Date of Decision: May 22, 2017 APPEARANCES:
Thomas W. Kerrigan, II and Royce A. Link for Appellants Bryan J. Mahoney for Appellees
PRESTON, P.J.
Plaintiffs-appellants, Paul Deitz (“Paul”), in his individual capacity and
as the personal representative of the estate of Christina Deitz (“Christina”), and Alexis Deitz (“Alexis”) (collectively “plaintiffs”), appeal the July 24, 2015 decision of the Shelby County Court of Common Pleas granting summary judgment in favor of defendant-appellant, the Franklin Township Board of Board of Trustees of Shelby County, Ohio (the “Board of Trustees”). For the reasons that follow, we affirm. This case stems from a negligence and wrongful death complaint filed
by plaintiffs on June 26, 2014 alleging that defendants-appellees, the Board of Trustees, Henry Harshbarger and Elizabeth Harshbarger (the “Harshbargers”), the Shelby County Board of Commissioners (the “Commissioners”), and Paradise Acres, LTD (“Paradise”), negligently caused the death of Christina and severe injury to Alexis. (Doc. No. 1). Plaintiffs’ complaint also names as a party to the case Nationwide Insurance Co. (“Nationwide”) since it “may claim an intеrest in the * * * matter by virtue of making payment of medical or funeral expenses on behalf of” Christina or Alexis. ( Id. ). On June 29, 2012, Christina and her daughter, Alexis, were traveling northbound on Scott Road, a roadway situated in Franklin Township, of Shelby County, Ohio, and were involved in a two-vehicle accident at the intersection of Scott Road and Sharp Road. [1] ( Id. ); (Doc. No. 206). Christina, who was operating the motor vehicle, failed to stop at a stop sign at the intersection and collided with another vehicle. (Doc. No. 1). Christina allegedly did not see the stop sign because the stop sign controlling northbound traffic on Scott Road was allegedly obscured by tree foliage. ( Id. ); (Doc. No. 206). The property on which the trees were growing is owned by the Harshbargers. (Doc. No. 206). It was further alleged that the intersection was obstructed by a corn field located on the southwest quadrant of the intersection. ( Id. ). The property on which the corn was growing is owned by Paradise. ( Id. ). On July 23, 2014, the Commissioners and Paradise filed its answers.
(Doc. Nos. 12, 15). The Board of Trustees filed its answer on July 25, 2014. (Doc. No. 18). On July 30, 2014, the Harshbargers filed their answers. (Doc. Nos. 23, 24). That same day, the Harshbargers filed a motion, which was granted by the trial court, requesting that the trial court transfer discovery from Case Number 13CV000233, which raised the same issues and was voluntarily dismissed without prejudice by plaintiffs. (Doc. Nos. 20, 25). Also on July 30, 2014, Nationwide filed its answer and cross-claim against the Harshbargers, the Board of Trustees, the Commissioners, and Paradise. (Doc. No. 22).
{¶4} The Board of Trustees filed its answer to Nationwide’s cross-claim on August 5, 2014. (Doc. No. 31). On August 14, 2014, Paradise filed its answer to Nationwide’s cross-claim. (Doc. No. 44). On August 28, 2014, the Harshbargers filed their answer to Nationwide’s cross-claim. (Doc. No. 62).
{¶5}
On August 20 and 25 2014, the Commissioners filed motions to dismiss
under
{¶6}
On October 17, 2014, plaintiffs filed a motion to dismiss under
prejudice its cross-claims against the Harshbargers, the Board of Trustees, the Commissioners, and Paradise. (Doc. No. 98). On April 8, 2014, the Commissioners filed a motion for summary
judgment asserting that there is no genuine issue of material fact that it is immune
from liability. (Doc. No. 166). On April 23, 2015, the Harshbargers filed a motion
for summary judgment asserting that there is no genuine issue of material fact that
they did not contribute to plaintiffs’ injuries and did not breach any duty they owed
to plaintiffs. (Doc. No. 173). On May 21, 2015, the Board of Trustees filed a motion
for summary judgment asserting that there is no genuine issue of material fact that
the Board of Trustees did not breach any duty owed to plaintiffs; no act or omission
caused the accident; and the Board of Trustees are immune from liability under
Commissioners’ and the Harshbargers’ motions for summary judgment. (Doc. Nos. 206, 207). Plaintiffs filed memorandums in opposition to the Board of Trustees’ and Paradise’s motions for summary judgment on June 10, 2015. (Doc. Nos. 226, 228). On May 26, 2015, the Commissioners filed its response to plaintiffs’
memorandum in opposition to the Commissioners’ motion for summary judgment. (Doc. No. 212). The Harshbargers filed their response to plaintiffs’ memorandum in opposition to the Harshbargers’ motion for summary judgment on May 28, 2015. (Doc. No. 216). On June 17, 2015, the Board of Trustees filed its response to plaintiffs’ memorandum in opposition to the Board of Trustees’ motion for summary judgment. (Doc. No. 237). On June 22, 2015, Paradise filed its response to plaintiffs’ memorandum in opposition to Paradise’s motion for summary judgment. (Doc. No. 242). After having been granted leave by the trial court on July 13, 2015, the Commissioners filed a “supplemental reply brief” on June 18, 2015. (Doc. Nos. 239, 253). On June 25, 2015, the Harshbargers filed an amended response to plaintiffs’ memorаndum in opposition to the Harshbargers’ motion for summary judgment. (Doc. No. 245).
{¶11} On July 24, 2015, the trial court granted summary judgment in favor of Paradise, the Board of Trustees, and the Commissioners. (Doc. Nos. 261, 262, 263). That same day, the trial court denied the Harshbargers’ motion for summary judgment. (Doc. No. 264).
{¶12} Plaintiffs filed notices of appeal on August 17, 2015 of the trial court’s decisions granting summary judgment in favor of Paradise, the Board of Trustees, and the Commissioners. (Doc. Nos. 271, 273, 275). On September 18, 2015, this court dismissed plaintiffs’ appeals because we lacked jurisdiction to consider them. On September 24, 2015, the trial court dismissed Paradise, the Board of Trustees, and the Commissioners as parties to the case. (Doc. No. 291). After the Harshbargers reached a settlement with Alexis, the trial court dismissed with prejudice Alexis’s claims against the Harshbargers on July 18, 2016. (Doc. No. 341). On August 24, 2016, the trial court dismissed with prejudice Paul’s claims in his individual capacity and in his capacity as the personal representative of Christina’s estate against the Harshbargers after the parties reached a settlement. (Doc. No. 346).
{¶15} Plaintiffs filed their notice of appeal on September 15, 2016 from the July 24, 2015 entry granting summary judgment in favor of the Board of Trustees. (Doc. No. 351). They raise one assignment of error for our review.
Assignment of Error
The Trial Court Erred in Granting Summary Judgment to the Defendant/Appellee, the Frankling [sic] Township Board of Trustees, of Shelby County, Ohio, on its Claim of Government Immunity In their assignment of error, plaintiffs argue that the trial court erred
by granting summary judgment in favor of the Board of Trustees because an exception applies to the general rule that political subdivisions enjoy immunity while engaging in either governmental or proprietary functions. In particular, plaintiffs argue that the trial court erred by concluding that the Board of Trustees is “immune from liability for failing to remove the obstruction blocking the view of the stop sign controlling Scоtt Road,” and erred by concluding that the Board of Trustees is “immune [from liability] for failing to properly maintain the stop ahead sign on Scott Road.” (Appellant’s Brief at 3). We review a decision to grant summary judgment de novo. Doe v.
Shaffer
,
producing some evidence which demonstrates the lack of a genuine issue of material
fact.”
Carnes v. Siferd
, 3d Dist. Allen No. 1-10-88,
immunity.”
Brady v. Bucyrus Police Dept.
,
affirmative defense.”
Green v. Columbus
, 10th Dist. Franklin No. 15AP-602, 2016-
Ohio-826, ¶ 18, citing
Slane v. Hilliard
, 10th Dist. Franklin No. 15AP-493, 2016-
Ohio-306, ¶ 30, citing
Jones v. Lucas Metro. Hous. Auth.
, 6th Dist. Lucas No. L-
96-212,
burden then shifts to the plaintiff to demonstrate that one of the exceptions to
immunity applies.”
Green
at ¶ 19, citing
Slane
at ¶ 30, and citing
Maggio v. Warren
,
11th Dist. Trumbull No. 2006-T-0028,
Subject to
(3) Except as otherwise provided in section 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads .
(Emphasis added). Plaintiffs advance two theories that they argue strip the Board
of Trustees from immunity under
avenues, alleys, and bridges within a political subdivision. ‘Public roads’ does not
include berms, shoulders, rights-of-way, or traffic control devices unless the traffic
control devices are mandated by the Ohio manual of uniform traffic control
devices.”
Based on the time of the accident, the relevant edition of the
OMUTCD is the 2012 edition. “The 2012 version of the OMUTCD, like the prior
versions, contains headings to classify the nature of the text that follows.”
Pelletier
v. Campbell
, 7th Dist. Mahoning No. 15 MA 0220,
provides, in relevant part,
ORC Section 4511.41 * * * establishes the right-of-way rule at intersections having no regulatory traffic control signs such that the driver of a vehicle approaching an intersection must yield the right- of-way to any vehicle or pedestrian alreаdy in the intersection. * * * The right-of-way can be modified at through streets or highways by placing YIELD * * * signs * * * or STOP * * * signs (see Sections 2B.05 through 2B.07) on one or more approaches. * * * Guidance
* * *
YIELD or STOP signs should be used at an intersection if one or more of the following conditions exist:
A. An intersection of a less important road with a main road where application of the normal right-of-way rule would not be expected to provide reasonable compliance with the law;
B. A street entering a designated through highway or street; and/or C. An unsignalized intersection in signalized area.
(Italics sic.) OMUTCD, Section 2B.04 (2012 Ed.). Based on that language, the stop sign at issue in this case is discretionary—that is, the OMUTCD provides guidance, not a standard, for when a stop sign like the one in this case should, not shall, be erected. However, plaintiffs argue that the stop sign at issue in this case was
mandated by the OMUTCD. In support of their argument, plaintiffs point to Section
2B.05 of the OMUTCD, titlеd
STOP Sign (R1-1) and ALL WAY Plaque (R1-
3P)
. (Bold sic.) That section provides, in relevant part, “
When it is determined
that a full stop is always required on an approach to an intersection, a STOP *
* * sign * * * shall be used
.” (Bold sic.) OMUTCD, Section 2B.05 (2012 Ed.).
Plaintiffs contend that “once the determination has been made [to
place the stop sign] the manual states that a stop sign becomes mandated and
therefore, a part of the roadway for the immunity analysis.” (Appellant’s Brief at
6). However, this argument has been rejected by other courts of appeal.
See, e.g.
,
Walters v. Columbus
, 10th Dist. Franklin No. 07AP-917,
the General Assembly explicitly excluded traffic control devices from the definition of a “public road” unless the traffic control device was mandated by the OMUTCD. By its clear language, it is evident that the General Assembly did not intend all erected traffic control devices to be considered part of a public road. Yet, such would be the result if [Walters’s] position was accepted. The statute clearly distinguishes between traffic control devices that are, and traffic control devices that are not, mandated by the OMUTCD.
Id.
That the Tenth District construed a prior version of the OMUTCD in its analysis
in
Walters
does not change the outcome in this case because the 2012 version
contains substantially similar guidance and standard language regarding stop signs.
[3]
In
Franks v. Lopez
, the Supreme Court of Ohio interpreted former
In so holding, the court stated: “Overhanging branches and foliage which obscure traffic signs, malfunctioning traffic signals, signs which have lost their capacity to reflect, or even physical impediments such as potholes, are easily discoverable, and the elimination of such hazards involves no discretion, policy-making or engineering judgment. The political subdivision has the responsibility to abate them and it will not be immune from liability for its failure to do so.” Id. , quoting Franks at 349. The General Assembly amended R.C. Chapter 2744 in 2003
subsequent to
Franks
. The General Assembly’s 2003 amendments added the
definition of public roads under
‘the legislature’s action in amending
The Supreme Court continued: “Given the General Assembly’s prior inclusion of the same language in Am.Sub.H.B. No. 350, our precedent that broadly defines the term ‘nuisance,’ and that S.B. 106 also limited the definition of ‘public roads’ from a more expansive reading that included ‘berms, shoulders, rights-of-way, or traffic control devices’ to one that focused solely on the roadway itself, * * * we discern a legislative intent to limit political-subdivision liability for roadway injuries and deaths. The General Assembly, in furtherance of its goal, used the word ‘obstructions’ in a deliberate effort to impose a condition more demanding than a showing of a ‘nuisance’ in order for a plaintiff to establish an exception to immunity.”
Id. , quoting Howard at ¶ 29. To say that a stop sign is mandated by the manual because a stop sign is erected flies in the face of the General Assembly’s intent. “[T]he General Assembly explicitly excluded traffic control devices from the definition of a ‘public road’ unless the traffic control device was mandated by the OMUTCD.” Walters at ¶ 20. “By its clear language, it is evident that the General Assembly did not intend all erected traffic control devices to be considered part of a public road.” Id. Yet, if we are to accept plaintiffs’ argument, every existing stop sign would be included in the definition of a public road. “The statute clearly distinguishes between traffic control devices that are, and traffic control devices thаt are not, mandated by the OMUTCD.” Id. This court addressed this issue under facts similar to those presented
by this case.
Bibler v. Stevenson
, 3d Dist. Hancock No. 5-14-29,
decision in this case because Bibler is distinguishable. Nonetheless, the plurality decision is instructive to our analysis. In Bibler , East Sandusky Street is also State Route 568. See id. at ¶ 12. Under Chapter 4511 of the Revised Code, state routes,
[o]ther streets or highways, or portions thereof are * * * through highways if they are within a municipal corporation, if they have a continuous length of more than one mile between the limits of said street or highway or portion thereof, and if they have “stop” or “yield” signals at the entrances of the majority of intersecting streets or highways[,]
and other highways, under the jurisdiction of a local authority, that are designated a
through highway by that local authority are through highways.
[5]
Local authorities in their respective jurisdictions shall place and maintain traffic control devices in accordance with the department of transportation manual for a uniform system of traffic control devices, adopted under section 4511.09 of the Revised Cоde, upon highways under their jurisdiction as are necessary to indicate and to carry out sections 4511.01 to 4511.76 and 4511.99 of the Revised Code, local traffic ordinances, or to regulate, warn, or guide traffic.
case are not through highways. That is, there is no allegation in the record that
Sharp Road or Scott Road are a through highway as defined by the statute.
See
neither the statute nor the OMUTCD mandate that a traffic-control device be erected
at their intersection.
See Walters
,
because it failed to maintain the stop-ahead sign on Scott Road—namely, plaintiffs
argue that the stop-ahead sign was improperly placed, which resulted in inadequate
notice to Christina of the upcoming stop sign. Under this theory of political-
subdivision liability, plaintiffs argue that the
stop-ahead sign must be included within the definition of a public road under
Cleveland
, 8th Dist. Cuyahoga No. 101771,
case does not fall within the meaning of “in repair.” That is, there is no genuine issue of material fact that the stop-ahead sign was deteriorated or disassembled. Rather, plaintiffs argue that the stop-ahead sign should have been placed at 325 feet in accordance with thе OMUTCD, instead of the 730 feet at which it was placed. The placement of the stop-ahead sign in this case is more akin to a roadway design or construction. See Sanderbeck at ¶ 38 (Lanzinger, J., dissenting) (concluding that the “road’s skid number” “relates only to a potential flaw in the road’s design or construction rather than the failure to adequately maintain the road”). As such, we conclude that “in repair” does not create a duty to change the location of a stop- ahead sign. See Bonace at ¶ 29 (“Consequently, ‘in repair’ does not create a duty to change allegedly absurd designs such as extreme and unnecessary side slopes that were constructed (and recently reconstructed) into a road.”). Moreover, even if the placement of a stop-ahead sign is included
within the phrase ‘in repair’ allowing the statutory exception to political-subdivision
immunity, the Board of Trustees’ immunity is restored by the discretion defensеs
under
exception can be reinstated if the political subdivision successfully argues that one
of the defenses to liability set forth in
In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability: * * *
(3) The political subdivision is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee. * * *
(5) The political subdivision is immune from liability if the injury, death, or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.
2744.03(A)(5). Elston . The Supreme Court noted:
Although both
Id.
at ¶ 27.
The Supreme Court applied the discretion defenses under
Miller v. State
, 10th Dist. Franklin No. 13AP-849,
discretionary under the OMUTCD is also indicative that the Bоard of Trustees is
entitled to immunity under
{¶45} Section 2C.05, titled Placement of Warning Signs , provides, in relevant part, “ Warning sings should be placed so that they provide an adequate [perception-response time]. The distances contained in Table 2C-4 are for guidance purposes and should be applied with engineering judgment .” (Bold and italics sic.) (OMUTCD, Section 2C.05). Table 2C-4, titled, Guidelines for Advance Placement of Warning Signs , suggests that a warning sign, including stop-ahead signs, be placed 325 feet when the posted speed limit is 55 mph. [10] (Bold sic.) OMUTCD, Table 2C-4 (2012 Ed.). Based on that language, the placement of the stop-ahead sign is discretionary—that is, the OMUTCD merely provides guidance, not a standard, for where a stop-ahead sign, like the one in this case, should be placed. For these reasons, we conclude that the Board of Trustees is immune from liability. Plaintiffs’ assignment of error is overruled. Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed SHAW, J., concurs.
WILLAMOWSKI, J., concurs in part and dissents in part. I respectfully concur in part and dissent in part from the majority. In
this case, I agree with both the legal reasoning and conclusion of the majority on the issues regarding the stop ahead sign. As to the stop sign, however, I am not persuaded by the legal reasoning of the majority that the trial court’s grant of summary judgment was appropriate in this case. After examining the general analysis contained in the majority
opinion, I am not convinced by the majority’s approach in determining whether a
given traffic control device is mandatory or discretionary under Ohio law. The
majority makes the primary issue whether this particular type of traffic control
device, i.e. a stop sign, is mandatory when the primary issue should be whether a
traffic control device is mandatory. Generally, the Ohio Revised Code mandates
that traffic control devices be plaсed in particular locations and lists several types
of traffic control devices that can fulfill that mandate.
See
where a traffic control device is mandated by the Ohio Revised Code or the
OMUTCD, that stop sign is mandatory even when the choice to erect another type
of traffic control device—such as a yield sign or a stop light—would also have
complied with the requirements of Ohio law. If the governing authority were to
replace this stop sign with a stop light, the stop light would serve as the mandatory
traffic control device for that location and would, therefore, be mandatory under
Ohio law. For this reason, if a traffic control device is required in a particular
location, the traffic control device selected for placement at that location is
mandatory and is, therefore, part of the public road for the purposes of
court’s granting of summary judgmеnt, * * * view all evidence in a light most
favorable to the non-moving party.”
Carnahan v. Morton Bldgs. Inc
., 41 N.E.3d
239,
of departure with the majority is how their analysis handles this dearth of
information, especially with respect to several relevant statutory provisions. As a
general principle, statutory provisions enacted by the General Assembly cannot be
superseded by guidelines promulgated by administrative agencies.
Bibler,
--- Ohio
St.3d ---,
public road for the purposes of
the allegations that overhanging foliage was obstructing the visibility of the stop
sign. In its judgment entry, the trial court determined that the following exception
to immunity, which is contained in
Except as otherwise provided in section 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by their * * * negligent failure to remove obstructions from public roads * * *.
highway improved, designed, or ordinarily used for vehicular travel, except the
berm or shoulder * * *.”
injury, death, or loss to person or property caused by * * * negligent failure to
remove obstructions from public roads * * *.” The definition of “public roads”
under
2744.02(B)(3), making political subdivisions liable for the “negligent failure to
remove obstructions from public roads * * *,”
a case where foliage was alleged to have blocked a traffic control device, the Ohio
Supreme Court, when interpreting
stop sign at issue is mandatory based upon the scant information contained in the
record. Further, I believe the question of whether any overhanging foliage in this
case was an obstruction remains unresolved. For these rеasons, I would not grant
the defendant’s motion for summary judgment and would, without deciding the
matter, find that the facts of this case are “potentially amenable to liability” for the
township.
Bibler
, --- Ohio App.3d ---,
Notes
[1] Scott Road is a township road and its maintenance is managed by the Board of Trustees. Sharp Road is a county road and maintenance is managed by the Commissioners.
[2] The Ohio Department of Transportation adopted the Ohio Manual of Traffic Control Devices as required
by
[3] Section 2B.04, titled “
STOP Sign (R1-1)
,” provides:
Standard:
When a sign is used to indicate that traffic is always required to stop, a STOP (R1-1) sign * *
* shall be used.
(Bold and capitalization sic.) OMUTCD, Section 2B.04 (2005 Ed., Revision 2).
Section 2B.05, titled “
STOP Sign Applications
,” provides:
Guidance:
STOP signs should be used if engineering judgment indicates that one or more of the following
conditions exist:
A. Intersection of a less important road with a main road where application of the normal right-of-
way rule would not be expected to provide reasonable compliance with the law;
B. Street entering a through highway or street (O.R.C.
[4] OMUTCD (2005 Ed., Revision 2)
[5]
[6] Although the Board of Trustees argue that “[t]he record already establishes that Shelby County and not Franklin Township was responsible for the stop sign,” the party responsible for the stop sign itself does not change the analysis of whether the stop sign is included in the definition of a public road. Because our analysis ends with whether the stop sign in this case is included in the definition of a public road under the statute, we need not address the Board of Trustees’ argument.
[7] It is undisputed that the stoр-ahead sign is owned and maintained by Franklin Township.
[8] Under
[9] Although the Supreme Court of Ohio addressed former
[10] The speed limit on Scott Road is 55 mph. ( See Doc. No. 1).
[11]