Hummons v. DaytonHummons v. Dayton
Rendered on the 9th day of October, 2009.
JOHN J. SCACCIA, Atty. Reg. #022217, Scaccia & Associates, LLC, 536 West Central Avenue, Second Floor, Spirngboro, Ohio 45066 Attorney for Plaintiff-Appellant
JOHN C. MUSTO, Atty. Reg. #0071512, 101 West Third Street, P.O. Box 22, Dayton, Ohio 45401 Attorney for Defendant-Appellee, City of Dayton, Ohio
MATTHEW D. DiCICCO, Atty. Reg. #0072889, Freund, Freeze & Arnold, One Dayton Centre, 1 South Main Street, Suite 1800, Dayton, Ohio 45402-2017 Attorney for Defendant-Appellee, Dayton Power & Light Co.
DAVID F. CHUPARKOFF, Atty. Reg. #0040556, 130 West Second Street, Suite 410, Dayton, Ohio 45402 Attorney for Defendant, Nixon
FAIN, J.
{¶ 2} We conclude that the undisputed facts in this case support the trial court‘s finding that Hummons did not file the claim against DP&L within the applicable statute of limitations, and that the claim is therefore time-barred. We further conclude that the trial court did not err in rendering summary judgment against Hummons with regard to his claim against the City, because there is no evidence that the City had actual or constructive notice of any potential nuisance that could cause the accident, and because the evidence indicates that the City did not have a reasonable amount of time to remedy any such nuisance prior to the accident.
{¶ 3} The judgment of the trial court is Affirmed.
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{¶ 4} On April 21, 2000, the City of Dayton received a call notifying it that the traffic lights at the intersection of Hillcrest Avenue and Salem Avenue were not operating. A City traffic crew responded to the intersection and found that the electrical power to the signal was out. The crew placed temporary stop signs at
{¶ 5} On April 22, the City received notification at 6:45 a.m. that there was a cable fire at the intersection. Another traffic crew was dispatched and it was discovered that a traffic signal cable had burned and fallen to the ground. The crew secured the cable, verified that the traffic lights were not functioning and that the stop signs were in place directing traffic at the intersection. The crew left the scene at 7:15 a.m. and DP&L was notified of the electrical failure. A DP&L crew arrived on the scene at 7:45 a.m. At 9:45 a.m., the DP&L crew restored power to the traffic lights at the intersection. DP&L left the area without notifying the City that the power had been restored. At 10:10 a.m. the accident involving Hummons occurred at the intersection.
{¶ 6} At that time, Hummons was involved in a motor vehicle accident when his car collided with a vehicle operated by Doris Nixon. He filed a complaint for those injuries on April 22, 2002. In that complaint he named Nixon, the City and “all other Jane or John Does” as defendants. On December 12, 2002, Hummons filed an amended complaint in which he named the same defendants, without adding any additional defendants. Then, on May 8, 2004, Hummons filed a second amended complaint, in which he added DP&L as a defendant in place of the John Doe defendant. DP&L was served with process via certified mail.
{¶ 7} DP&L filed an answer in which it affirmatively asserted the defense of the expiration of the statute of limitations. DP&L also filed a motion for summary
{¶ 8} DP&L re-filed a motion for summary judgment, in which it again argued that Hummons‘s claim against it was time-barred. DP&L also claimed that Hummons had not served it properly in accordance with the personal service requirement of {¶ 9} The trial court rendered summary judgment in favor of DP&L upon a finding that Hummons had not timely commenced an action against the company. The trial court also rendered summary judgment in favor of the City upon a finding that the City did not have sufficient time in which to remedy any problem with the traffic lights. {¶ 10} Hummons appeals.1 {¶ 11} Hummons’ First Assignment of Error is as follows: {¶ 12} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT {¶ 13} Hummons contends that the trial court should not have rendered summary judgment against him with regard to his claims against DP&L. In support, he claims that DP&L waived any issue regarding service of process by failing to raise this issue in the trial court. He further claims that his action against DP&L was timely filed, because he served the company with process within one year from the date he filed the amended complaint identifying the company as one of the John Doe defendants. {¶ 14} We review an appeal from summary judgment under a de novo standard. Baiko v. Mays (2000), 140 Ohio App. 3d 1, 10. Therefore, we must independently review the record to determine whether summary judgment is appropriate. Northeast Ohio Apartment Assn. v. Cuyahoga Cty. Bd. Of Commrs. (1997), 121 Ohio App. 3d 188, 192. Pursuant to {¶ 15} In this case, the facts with regard to the pleadings are undisputed. Therefore, this argument presents a purely legal issue of whether Hummons‘s second amended complaint relates back to the original complaint, so as to render his claim against DP&L timely filed. {¶ 17} {¶ 18} {¶ 19} Hummons appears to be arguing that the one-year extension for service provided for in {¶ 20} In this case, it is undisputed that Hummons was injured on April 22, 2000; that he filed his original complaint on April 22, 2002, the last day possible prior to the expiration of the {¶ 21} Hummons claims that DP&L waived any claims regarding the service of process by failing to assert the issue in the trial court, pursuant to {¶ 22} Although we agree that DP&L failed to assert the lack of personal service as a defense as required by {¶ 23} The First Assignment of Error is overruled. {¶ 24} Hummons’ Second Assignment of Error states as follows: {¶ 26} Hummons contends that the trial court erred by rendering summary judgment in favor of the City because he demonstrated that the City was responsible for failing to repair the traffic lights at the intersection where the accident occurred. He contends that the City‘s failure to do so created a nuisance. {¶ 27} As a general rule, municipalities are immune from liability for “damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the [municipality] in connection with a government or proprietary function.” {¶ 28} Pursuant to {¶ 30} “However, if the municipality did not create the faulty condition, no liability can arise except upon proof that it had actual or constructive notice of such condition.” Schmidt v. Mansfield (April 9, 1998), Tuscarawas App. No. 97 CA 99, citing City of Cleveland v. Amato (1931), 123 Ohio St. 575, paragraph one of the syllabus. “Thus, before liability can attach, a municipality must have had actual or constructive notice of a nuisance condition and must have failed to correct the condition within a reasonable time after having received such notice.” Id., citing Taylor v. City of Cincinnati (1944), 143 Ohio St. 426, paragraph five of the syllabus. {¶ 31} The trial court determined that the City did not cause the malfunction with the subject traffic light. We agree. From the record, it appears that the traffic light malfunction was due to problems with the electrical service to the light. {¶ 32} The trial court further determined that “regardless of [whether the City had notice], the uncontroverted record in the instant case establishes there was insufficient time for the City to correct any problem that may have resulted after DP&L employees serviced the traffic light. The record shows that electrical service was restored to the area at 9:45 A.M. on the day of the accident. The record also shows that there was a call reporting [the accident] at approximately 10:10 A.M. {¶ 33} In finding that the City did not have sufficient time to remedy the problem, the trial court relied upon the holding of the Tenth District Court of Appeals in Coleman v. Village of Groveport (Oct. 6, 1992), Franklin App. No. 92AP-375. In Coleman, a traffic accident occurred following a power outage that shut down the entire traffic signal system in the Village of Groveport. Id. Seventeen minutes later, a motor vehicle accident occurred as a result of the lack of a traffic signal at an intersection. Id. The Court of Appeals found that “as a matter of law seventeen minutes is an insufficient time to require the [Village] to repair the traffic signal.” Id. {¶ 34} We find Coleman distinguishable upon its facts. First, Coleman involved a single power outage resulting in the shut-down of the traffic system; in this case, there is evidence that the subject traffic light had experienced an outage the day prior to the accident with ongoing problems until the morning of the accident. Second, in Coleman, the traffic light at issue was completely shut down. In this case, the evidence is conflicting with regard to the status of the signal. A city worker testified that when a power outage occurs, traffic lights affected thereby will go completely dark or into “all flash mode” -- meaning the light will flash red in all directions until reset by a City electrician. The worker also testified that the lights will go into flash mode if the microprocessor in the light senses a problem such as a potential for green lights in both directions. The flash mode goes into effect within seconds of sensing such problems. Hummons corroborated this testimony in his own deposition wherein he indicated that the traffic light was flashing red in his {¶ 35} The City of Dayton had constructive notice of the existence of a problem with the traffic lights for a period of approximately twenty-four hours, due to issues with the electrical service. But there is no evidence that the City had any notice that the light was not operating properly following the restoration of the electrical service. The City was not made aware that the light was possibly operating normally in one direction and in flash mode in the other direction. In other words, once DP&L restored power to the intersection, the City expected the light either to go into flash mode or to go completely dark. The City had no notice that the light did not function as expected following a restoration of power. Furthermore, the City had placed stop signs at all four corners of the intersection to control traffic during the time period wherein the light was supposed to be either dark or flashing. {¶ 36} Absent any evidence that the City was informed that the power had been restored or that the light subsequently malfunctioned by failing to go dark or into flash mode, we conclude that the City did not have actual or constructive notice of any potential nuisance. Even it the City did have notice, there was, at most, twenty-five minutes between the restoration of power to the lights and the occurrence of the accident. We agree with the trial court‘s conclusion, as a matter of law, finding that there was not a reasonable amount of time between those two occurrences for the City to correct the problem. Therefore, we conclude that summary judgment was appropriate. {¶ 38} Both of Hummons‘s assignments of error having been overruled, the judgment of the trial court is Affirmed. BROGAN and FROELICH, JJ., concur. Copies mailed to: John J. Scaccia John C. Musto Matthew D. DiCicco David F. Chuparkoff Hon. Barbara P. GormanII
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