524 N.E.2d 175 | Ohio Ct. App. | 1987
This is an appeal from a judgment of the Franklin County Court of Common Pleas granting summary judgment to appellee Board of Trustees of Pleasant Township ("Pleasant Township") and dismissing it as a party in the action.
This action involves an automobiletrain accident which occurred at the intersection of State Route 665 and the Baltimore Ohio Railroad Company crossing in Pleasant Township, Ohio. The trial court held that Pleasant Township was entitled to the defense of sovereign immunity and that it had no duty to maintain the B O Railroad crossing at State Route 665. Appellants Baltimore Ohio Railroad Company ("B O Railroad") and Steve R. Basalla have appealed the trial court's decision.
Appellant B O Railroad advances the following assignment of error:
"The trial court erred in granting summary judgment to defendant-appellee Pleasant Township Board of Trustees because it was not immune from [liability] * * * based on sovereign immunity and it had a duty to properly maintain the roads within its jurisdiction."
Appellant Basalla asserts four assignments of error:
"I. The decision of the trial court was improper and unreasonable in form based on Civil Rule 56(D). Said decision byimplication holds that the Pleasant Township Board of Trustees has the right to maintain a nuisance within its jurisdiction after actual notice of such nuisance. This holding is unlawful, unreasonable, improper and should be reversed.
"II. The trial court erred in disregarding the arguments and record advanced on the issue of nuisance, and its finding of `no genuine issue of material fact' is error, because reasonable minds could come to a conclusion adverse to defendant-appellee, particularly since the court impliedly found a breach of duty. Said finding is unreasonable and improper and should be reversed.
"III. The trial court erred in concluding as a matter of law that the Pleasant Township Board of Trustees was shielded from liability herein by sovereign immunity. Said conclusion is not supported by the record and is illegal, unreasonable, improper and should be reversed.
"IV. Genuine issues of material fact exist regarding the Pleasant Township Board of Trustees['] statutory duties to maintain the safety of railroad grade crossings within its jurisdiction, and the court erred in granting summary judgment in favor of the township."
Pleasant Township was granted summary judgment pursuant to Civ. *96 R. 56(C), which provides, in pertinent part, that:
"* * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. * * *"
The assignments of error are interrelated and raise the following issues: (1) whether Pleasant Township had a statutory duty to install and maintain safety devices at the B O Railroad crossing at State Route 665; (2) whether Pleasant Township is entitled to the defense of sovereign immunity; and (3) whether there is a cause of action in tort against Pleasant Township for its failure to abate an alleged nuisance.
The first issue presented by B O Railroad's assignment of error and Basalla's fourth assignment of error is whether Pleasant Township had a statutory duty to install and maintain safety devices at the railroad crossing.
Appellants have cited numerous statutes in support of the contention that Pleasant Township had a statutory duty to maintain the roads within its jurisdiction and to adequately install traffic control devices, including the installation of warning devices at railroad crossings. The provisions in those statutes do not support appellants' conclusion. See R.C.
A township may by agreement contribute to the repair and maintenance of roads under the control of the county or state. Although R.C.
R.C.
Appellants contend that the Supreme Court's interpretation of R.C.
Appellants rely upon R.C.
Therefore, this court finds that Pleasant Township had no statutory duty to install and maintain safety devices at the B O Railroad crossing. Thus, that part of appellant B O Railroad's assignment of error which addressed this issue and appellant Basalla's fourth assignment of error are not well-taken.
The next question raised by appellant B O Railroad's assignment of error and appellant Basalla's third assignment of error is whether Pleasant Township is entitled to the defense of sovereign immunity. The case of Enghauser Mfg. Co. v. ErikssonEngineering Ltd. (1983),
The decision of the Board of Trustees of Pleasant Township not to install or maintain safety devices at the railroad crossing was an exercise of an executive or planning function involving a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion. See, also, C DPartnership v. Gahanna (1984),
The policy decision as to how and for what purpose township funds are to be allocated is also a legislative function. Tort immunity applies "for activities involving basic planning and policymaking functions in recognition that the threat of tort liability for such activities could have a chilling effect on the ability of municipal governments to *98
deal effectively with difficult policy issues which they must confront daily," and, therefore, governmental decision-making for such activities should not be "subject to judicial second-guessing or harassment by the actual or potential threat of litigation." C D Partnership, supra, at 364, 15 OBR at 484,
Appellants maintain that a series of Supreme Court decisions subsequent to Enghauser have curtailed the doctrine of sovereign immunity to the point of virtual elimination. The cases which appellants rely upon are factually distinguishable since they involved the negligent performance or nonperformance of activities concerning previously established policies or plans.
For example, in Strohofer v. Cincinnati (1983),
The O'Brien v. Egelhoff (1984),
The Mathis case involved an action by a mother of a child who had been seriously injured when he was struck by a car while leaving the city library bookmobile. The claims of negligence were based upon the manner in which the library engaged in operating the bookmobile. In accordance with the Enghauser decision, the court found that a public library could be held liable for the negligent acts or omissions of its employees.
In sum, this case is distinguishable from the circumstances surrounding the Strohofer, O'Brien and Mathis decisions. Pleasant Township made a basic policy decision characterized by a high degree of official judgment or discretion, and thus is entitled to the defense of sovereign immunity.
Appellant B O Railroad's assignment of error and appellant Basalla's third assignment of error are not well-taken.
The final issue raised by appellant Basalla's first and second assignments of error is whether there is a viable action in tort against Pleasant Township for its failure to abate an alleged nuisance. Appellant alleges that the railroad crossing constituted a nuisance. Nevertheless, there are no genuine issues of fact raised that the crossing was a nuisance.
Appellant maintains that Pleasant Township breached its official duty under former R.C.
As indicated above, it was not a part of the official duties of the Board of Trustees of Pleasant Township to install and maintain safety devices at the B O Railroad crossing. Pleasant Township cannot be found liable in tort for a failure to abate an alleged nuisance.
Appellant Basalla's first and second assignment of error are not well-taken.
For the foregoing reasons, appellant B O Railroad's assignment of error and the assignments of error of appellant Basalla are overruled. The judgment of the trial court is affirmed.
Judgment affirmed.
MCCORMAC and BOWMAN, JJ., concur.