656 N.E.2d 1025 | Ohio Ct. App. | 1995
Lead Opinion
On July 6, 1990, plaintiff-appellant, Jeffrey D. Jones, was operating a cement truck owned by his employer, Weidle Concrete, on Oxford Street in Franklin, Ohio. As Jones drove down Oxford Street, he passed beneath a railroad bridge, striking the underside of the bridge with the top of his truck. The railroad bridge that Jones struck had a clearance of eleven feet six inches, while the truck was approximately thirteen feet tall. At the time of the accident, there were no signs indicating the low clearance of the railroad bridge.
On April 7, 1992, Jones filed suit against defendant-appellee, the city of Franklin, claiming to have suffered a permanent back injury as a result of the accident.1 In his complaint, Jones alleged that appellee created a nuisance by failing to install a sign to adequately warn oncoming motorists of the railroad bridge's low clearance. Jones also alleged that appellee's negligent failure to install a low clearance sign to warn approaching traffic proximately caused his injuries.
The case proceeded to trial on July 18, 1994. At the close of Jones's opening statement, appellee moved for a directed verdict. The motion was based upon the Supreme Court of Ohio's recent case of Franks v. Lopez (1994),
In his sole assignment of error, Jones argues that the trial court erred in sustaining appellee's motion for a directed verdict after his opening statement. Pursuant to Civ.R. 50(A), a motion for a directed verdict may be made on the opening statement of the opposing party. However, as the Supreme Court of Ohio stated in Brinkmoeller v. Wilson (1975),
"A trial court should exercise great caution in sustaining a motion for a directed verdict on the opening statement of counsel; it must be clear that all the facts expected to be proved, and those that have been stated, do not constitute a cause of action or a defense, and the statement must be liberally construed in favor of the party against whom the motion has been made."
A directed verdict may only be granted when a court finds that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for a directed verdict is sought. Mitchell v. Cleveland Elec. Illum.Co. (1987),
Jones contends that the trial court erred in relying uponFranks, supra, in sustaining appellee's motion for a directed verdict. Jones argues that Franks is distinguishable from the present case. It is Jones's position that, because Section 2N-15 of the Manual of Uniform Traffic Control Devices ("MUTCD") and R.C.
In Franks,
"Appellants * * * have asked us to expand our nuisance definition to include design and construction defects and the failure to erect the signage. This we decline to do. This court has never held that defective design or construction or lack of signage constitutes a nuisance. These categories simply do not constitute a nuisance as this term has been defined by this court."
Later in the same opinion, the Supreme Court stated that "as a matter of law, * * * the failure to erect proper signage [does] not constitute a nuisance within the meaning of R.C.
Jones argues that Franks holds only that the failure to install a sign does not constitute a nuisance when the installation of the sign is discretionary. Jones *117 claims that if installation of a sign is mandatory, then failure to install the sign constitutes a nuisance. We disagree.
MUTCD Section 2N-15 states that:
"The Low Clearance (W-42) sign, indicating low overhead clearance at low bridges, underpasses, and other overhead structures, shall be used at all points where clearance is less than 13 feet-6 inches. The sign should be erected between 400 feet and 750 feet in advance of the entrance to the structure." (Emphasis added.)2
Jones is correct in pointing out that MUTCD is binding upon local authorities. R.C.
R.C.
"(2) A `governmental function' includes, but is not limited to, the following:
"* * *
"(i) The enforcement or nonperformance of any law;
"(j) the regulation of traffic, and the erection or nonerection of traffic signs, signals, or control devices[.]"
R.C.
"(A)(1) For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.
"(B) Subject to sections
"* * *
"(3) Political subdivisions are liable for injury, death, or loss to persons or property caused by their failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, * * * within the political subdivisions open, in repair, and free from nuisance * * *.
"* * *
"(5) * * * Liability shall not be construed to exist under another section of the Revised Code merely because a responsibility is imposed upon a political subdivision * * *."
Pursuant to R.C.
WALSH, P.J., concurs.
KOEHLER, J., dissents.
Dissenting Opinion
The city had a duty to erect and maintain signage on the "low bridge" which caused appellant's injuries. Such an open and obvious hazard does not require the exercise of discretion any more than removing low-hanging branches or filling potholes require discretion to be exercised to correct a dangerous condition upon the city's streets or highways. *119
I believe Franks, supra, has been misread and reference to signage therein is not relevant to this cause. For the reasons set forth by the trial court in its decision denying the city's motion for summary judgment, I dissent.
