Lead Opinion
{¶ 3} While the dump truck was dropping gravel and traveling in reverse down the roadway at a speed of approximately three to four miles per hour, the truck ran over a tree stump. The spreader box collided with the stump and Mr. Moody was tragically thrown off the box and into the back wheels of the dump truck, sustaining fatal injuries.
{¶ 4} The stump was approximately a foot high, about a foot and a half in diameter and was located in between the roadway and the ditch. The stump had been spray-painted bright yellow. The roadway had no shoulder, curb or edge lines. Several people, including Mr. Moody, observed the stump prior to the accident. John Lytle, one of the owners of Lytle Construction, observed the stump prior to the accident. Soon thereafter, John Lytle informed Steve Siegrist, Coshocton County Deputy Engineer, about the stump. Mr. Siegrist drove to the stump to examine it. Upon inspecting the stump, Mr. Siegrist decided that it was not something that needed to be addressed immediately and therefore decided not to have it removed at that time. On the morning of the accident, John Lytle told Doug Rupp, the foreman of the chip and seal crew, to watch out for the stump.
{¶ 5} The truck upon which Mr. Moody was traveling passed by the stump on two occasions before the accident occurred. On the second pass, Mr. Moody warned Mr. Rupp that the truck was nearing the stump. The crew then stopped the truck, folded up the spreader box and drove by the stump without incident. The accident occurred during the crew's third pass of the stump when the crew was performing touch-up work on the road. For reasons unexplained in the record, the crew did not, on the third pass, navigate around the stump. After the accident, Roger Hill, the Road Supervisor for Coshocton County, went to see the stump. Mr. Hill determined that the stump should be removed, but that it was not a hazard to travelers on the roadway. Thereafter, the stump was removed.
{¶ 6} On August 29, 2003, Appellant, as the administratrix of Mr. Moody's estate, filed a complaint for wrongful death against Appellees in Wayne County Common Pleas Court. Appellant alleged that Appellees were liable for failing to maintain a public road in repair and free from nuisance. On March 29, 2005, Appellees filed a motion for summary judgment in which they argued that they were immune from liability. On May 2, 2005, Appellant filed a brief in opposition to Appellees' motion. On May 13, 2005, Appellees filed a reply thereto. The trial court granted summary judgment in favor of Appellees on June 29, 2005, finding them immune under political subdivision immunity. The court provided no factual or legal rationale for its decision. Appellant filed a timely notice of appeal on July 25, 2005, raising one assignment of error for review.
{¶ 7} In her sole assignment of error, Appellant contends that the trial court erred in granting summary judgment in favor of Appellees on the basis of political subdivision immunity.
{¶ 8} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996),
{¶ 9} Pursuant to Civil Rule 56(C), summary judgment is proper if:
"(1) No genuine issue as to any material fact remains to be litigated;
(2) the moving party is entitled to judgment as a matter of law; and
(3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v.Wean United, Inc. (1977),
{¶ 10} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt (1996),
{¶ 11} In support of its motion for summary judgment, Appellees relied upon the depositions of several Lytle Construction Company employees and Coshocton County employees. In her brief in opposition, Appellant also relied upon these depositions and additionally relied upon the report and affidavit of John Messineo, a civil engineer who inspected the accident scene after the accident, as well as photos of the stump and accident scene.
{¶ 12} Here, Appellant argues that the trial court erred in granting summary judgment to Appellees because the stump constituted a nuisance and Appellees breached their duty under R.C.
{¶ 13} In determining whether a political subdivision is immune from liability, this Court must engage in a three-tier analysis. Cater v. Cleveland (1998),
"[e]xcept 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 person 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."
"With respect to the tort liability of political subdivisions, the maintenance and repair of bridges, roads, highways, and streets is a `governmental function.'" Maier v. Norton (June 11, 1997), 9th Dist. No. 18002, at *2.
{¶ 14} The second tier involves the five exceptions set forth in R.C.
{¶ 15} Lastly, under the third tier, "immunity can be reinstated if the political subdivision can successfully argue that one of the defenses contained in R.C.
{¶ 16} Assuming without deciding that Appellant has established that the stump constituted a nuisance, Appellees are nonetheless absolved of their duty to remove the stump as the stump was open and obvious. Cook Family Invests. v. Billings,
9th Dist. Nos. 05CA008689, 05CA008691,
{¶ 17} The open and obvious doctrine provides that a premises owner owes no duty to a person that enters upon the premises with respect to open and obvious dangers, when the conditions are so obvious that a person may be expected to discover them and protect himself or herself against the conditions. Armstrong v.Best Buy Co., Inc.,
{¶ 18} We find no dispute that the stump was an open and obvious hazard. The stump was approximately a foot high, about a foot and a half in diameter and was located in between the roadway and the ditch. Moreover, the stump had been spray-painted bright yellow. There is no dispute that several people, including Mr. Moody, observed the stump prior to the accident. The dump truck passed by the stump on two occasions before the accident occurred. On the second pass, Mr. Moody warned Mr. Rupp that the truck was nearing the stump.
{¶ 19} This Court has held that the open and obvious doctrine applies in situations such as this involving a statutory duty to maintain property free from nuisance. See Pozniak v. Recknagel,
9th Dist. No. 03CA008320,
{¶ 20} We overrule Appellant's sole assignment of error.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
Notes
Concurrence Opinion
{¶ 22} While I agree with the reasoning set forth in Judge Moore's dissent, I am bound by stare decisis to follow our prior caselaw. Therefore, I concur in the majority's decision.
Dissenting Opinion
{¶ 23} As I find the open and obvious doctrine inapplicable to the within matter, I respectfully dissent. The open and obvious doctrine is a legal doctrine that has developed in suits against property owners by persons injured on the property of another. Simmers v. Bentley Constr. Co. (1992),
"[h]istorically, a landowner's liability in tort is incident to the occupation or control of the land, which involves the owner's right and power to admit and exclude people from the premises. The `open and obvious' doctrine, therefore, governs a landowner's duty to persons entering the property-property over which the landowner has the right and power to admit or exclude persons as invitees, licensees, or trespassers." (Internal citations omitted.) Id. at 645.
I find that this doctrine is inapplicable to cases involving the statutory duty of a political subdivision under R.C.
{¶ 24} First and foremost, the open and obvious doctrine is a common law doctrine. Robinson v. Bates,
{¶ 25} Second, the open and obvious doctrine involves the duty to warn and protect against open and obvious dangers, while this case involves a different duty — the duty to keep roads open, in repair and free from nuisance. R.C.
{¶ 26} Last, it would be nonsensical to hold that the open and obvious doctrine could somehow eviscerate Appellees' statutory duty to keep its roads open, in good repair and free from nuisance. That holding would allow political subdivisions to flagrantly violate their statutory duties under R.C.
{¶ 27} In Klosterman v. Medina, 9th Dist. No. 04CA0052-M,
{¶ 28} As noted in Klosterman, this Court has previously applied the open and obvious doctrine to cases involving a political subdivision's statutory duty to maintain property free from nuisance. See Rogers v. Wooster (July 30, 1997), 9th Dist. No. 96CA0085 (finding that city owed no duty to protect appellant from condition because of obvious nature) and Plant v. Bd. ofCty. Commrs. (Dec. 13, 2000), 9th Dist. No. 00CA0010 (determining that walkway and railing were open and obvious conditions and that county had no duty to protect appellant from these conditions). In Pozniak, supra, we held that a hole in a public sidewalk presented an open and obvious danger. We declined to consider the appellant's argument that the hole in the sidewalk constituted a nuisance, as she had failed to preserve that argument for appeal. Pozniak, supra, at ¶ 19.
{¶ 29} In Jenks v. Barberton, 9th Dist. No. 22300,
{¶ 30} Upon review of this Court's recent applications of the open and obvious doctrine, I would find that to the extent this Court has previously relied upon the open and obvious doctrine to negate a political subdivision's statutory duty under R.C.
"A prior decision * * * may be overruled where (1) the decision was wrongly decided at that time, or changes in circumstances no longer justify continued adherence to the decision, (2) the decision defies practical workability, and (3) abandoning the precedent would not create an undue hardship for those who have relied upon it." Id. at paragraph one of syllabus.
{¶ 31} Judge Baird (Retired, 9th District Court of Appeals) has served as a persistent voice of dissent regarding this issue. See Klosterman, supra; Steidl, supra. His opinion inKlosterman set the stage for a departure from our precedent. I find that no undue hardship will arise from abandoning our precedent as our prior pronouncements on this issue have already been questioned. Galatis, supra, at paragraph one of syllabus. In light of (1) the nonsensical effect and unjust result of using this doctrine to relieve political subdivisions of their statutorily imposed duties and (2) concerns raised in this Court's recent pronouncements, I find that this case fits squarely within the test outlined in Galatis. Id. Accordingly, I would find that the common law open and obvious doctrine is inapplicable to matters involving a political subdivision's statutory duty under R.C.