MUENCHENBACH ET AL., APPELLANTS, v. PREBLE COUNTY, OHIO, ET AL., APPELLEES.
No. 99-1930
Supreme Court of Ohio
March 14, 2001
91 Ohio St.3d 141 | 2001-Ohio-244
Submittеd September 12, 2000. APPEAL from the Court of Appeals for Preble County, No. CA98-07-009.
Political subdivision tort liability—For purposes of
OPINION
ALICE ROBIE RESNICK, J.
{¶ 1} On October 24, 1995, plaintiffs-appellants, Richard, Geraldine, and Ruth Muenchenbach, were driving north on West Florence–Campbellstown Road in Jackson Township, Preble County. As they passed the intersection of West Florencе–Campbellstown Road and State Route 122, appellants drove by a small “men working” sign and two Preble County pickup trucks. After traveling about another mile and a half, appellants encountered a four-wheeled 1983 Ford Model 5610 tractor, equipped with a street-sweeping brush on the front and a scraper blade on the back, sitting motionless on the east side of the road. Richard slowed his own vehicle, sounded his horn, and attempted to pass the vehicle on the left. At that time, the tractor, which was operated by William House, a highway service worker employed by the Preble County Engineer, made a sudden left turn toward a private driveway and struck appellants’ vehicle, causing it to leave the roadway and roll over into a field.
{¶ 3} The cause is now before this court pursuant to the allowance of a discretionary appeal.
{¶ 4} The issues presented in this case involve whether the vehicle in question was a motor vehicle pursuant to
{¶ 5}
“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.”
{¶ 6}
“Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent operation of any motor vehicle by their employees upon the public roads, highways,
or streets when the employees are engaged within the scope of their employment and authority.” (Emphasis added.)
{¶ 7} Since
{¶ 8}
” ‘Motor vehicle’ means every vehicle propelled or drawn by power other than muscular power or power collected from overhead electric trolley wires, except motorized bicyсles, road rollers, traction engines, power shovels, power cranes, and other equipment used in construction work and not designed for or employed in general highway transportation, hole-digging machinery, well-drilling machinery, ditch-digging machinery, farm machinery, trailers used to transport agricultural produce or agricultural production materials between a local place of storage or supply and the farm when drawn or towed on a street or highway at a speed of twenty-five miles per hour or less, threshing machinery, hay-baling machinery, аgricultural tractors and machinery used in the production of horticultural, floricultural, agricultural, and vegetable products, and trailers designed and used exclusively to transport a boat between a place of storage and a marina, or in and around a marina, when drawn or towed on a street or highway for a distance of no more than ten miles and at a speed of twenty-five miles per hour or less.” (Emphasis added.)
{¶ 9} Since the only dispute in this case concerns the application of the italicized exception, the determinative issue narrows to whether the vehicle operated by House constitutes “other equipment used in construction work and not designed for or employed in general highway transportation.”
{¶ 10} In addressing this issue, the courts below considered the decision of the Court of Appeals for Cuyahoga County in Putka v. Parma (1993), 90 Ohio App.3d 647, 630 N.E.2d 380. In that case, the plaintiffs’ decedent was struck and
{¶ 11} The city claimed that it was immune from liability pursuant to
“[A] backhoe is not a ‘motor vehicle’ within the provision of
R.C. 4511.01(B) if it is used for its intended purрose; however, where a backhoe is operated on the public road like any other vehicle, it cannot be exempt as a matter of law from being classified as a ‘motor vehicle’ on the pretext that it traveled a short distance.” Id., 90 Ohio App.3d at 652, 630 N.E.2d at 383.
{¶ 12} The court explained that “any implication that a vehicle can roam around the public road and not be treated as a ‘motor vehicle’ within the meaning of
{¶ 13} The trial court in the present case found the reasoning in Putka “logical and sound and therefore persuasive.” However, the trial court found that the accident in this case occurred while the vehicle was being used in construction work, rather than in general highway transportation, and rejected appellants’ affidavit statements to the contrary. The court of appеals distinguished Putka on
{¶ 14} A large portion of appellants’ affidavits is admittedly conclusory in nature. The affidavits submitted by appellees are also conclusory to the extent that they recite the definitional language of the statute. Indeed, the evidence in this case consists entirely of these affidavits, answers to interrogatories, an accident report, and several copies of photographs of the vehiсle. Nevertheless, a careful examination of the record reveals that, aside from the conclusory allegations, there is sufficient evidence to create a genuine issue of material fact under the so-called “use standard” as applied to the construction equipment exception to the definition of “motor vehicle” in
{¶ 15} According to the affidavits submitted by appellees, House was working for the County Engineer on a road construction project that entailed repaving West Florence–Campbellstown Road betwеen State Route 122 and Crawfordsville–Campbellstown Road. “Construction zone” and “men working” signs were posted at both intersections north and south of the “country block.” The vehicle that House was operating on October 24, 1995, was equipped with a “slow-moving vehicle” reflector sign and two large yellow flashing lights mounted on the cab. At the time of the accident, House had just completed packing gravel berm on the east side of the highway, and was preparing to turn left into a private drive so that he could turn around and head south in order to pack down freshly dumped gravel on West Florence–Campbellstown Road.
{¶ 16} According to appellants’ affidavits, there was one small “men working” sign approximately fifteen to twenty feet north of State Route 122, but no “construction zone” sign. As they passed this sign, appellants drove between two county pickup trucks, one on each side of West Florence–Campbellstown Road. The employees in these trucks were talking to each other across the road, but did not warn appellants that there was construction work further up the road. As they
{¶ 17} Based on this evidence, it appears that a genuine issue of fact remains as to whether the vehicle in this case was employed in general highway transportation at the time of the accident. Accordingly, the application of a use standard compels the conclusion that summary judgment is not appropriate under Civ.R. 56(C).
{¶ 18} However, appellees challenge the concept of a use standard as being in derogation of the statutory language and propose that we classify all vehicles equipped for and used in construction work as excepted construction equipment, regardless of how they were used at the time of the accident. It appears to be appellees’ overall contention that the limiting or modifying language “used in construction work and not designed for or employed in general highway transportation” signifies an intent to classify “other equipment” on the basis of a vehicle‘s inherent qualities, or its general, principal, or dedicated use, rather than on the basis of its current actual use. However, the arguments advanced by appellees, and the authorities on which they rely, convince us that the opposite is true.
{¶ 19} In Wauseon v. Badenhop (1984), 9 Ohio St.3d 152, 9 OBR 442, 459 N.E.2d 867, the court held that a farm tractor is a “vehicle” for purposes of conviction under
{¶ 20} At the time that Badenhop was cited for driving under the influence of alcohol, he was driving the farm tractor pulling two farm wagons of people on a hayride in the city of Wauseon. Appellees correctly observe that our decision in Badenhop “did not cause a specifically excluded vehicle to transform into a ‘motor vehicle’ simply because it was being operated on a public road.” More to the point, our decision to classify the tractor in Badenhop as an excepted agricultural tractor under
{¶ 21}
{¶ 22} In contrast,
{¶ 23} Moreover, the court‘s determination in Badenhop was premised on the interplay of three code sections —
“No person shall be required to obtain a driver‘s or commercial driver‘s license for the purpose of driving or operating a road roller, road machinery, or any farm tractor or implement of husbandry, temporarily drawn, moved, or propelled upon the highway.” (Emphasis added.)
{¶ 24} However, the application of a use standard is entirely consistent with the traffic law exemptions granted under
“Sections
4511.01 to4511.78 , inclusive, section4511.99 , and sections4513.01 to4513.37 , inclusive, of the Revised Code do not apply to * * * other equipment while actually engaged in work upon the surface of a highway within an area designated by traffic control devices, but apply to such * * * vehicles when traveling to or from such work.“The drivers of * * * other vehicles utilized in * * * road surface maintenance, while engaged in work upon a highway, * * * shall be exempt from criminal prosecutions for violations [of specified code sections]. Such exemption shall not apply to such drivers when their vehicles are not so engaged.” (Emphasis added.)
{¶ 25} In addition, aside from references to “agricultural” or “commercial” tractors, each time the term “tractor” appears generally in
{¶ 26} Appellees also rely on Drake-Lassie v. State Farm Ins. Cos. (1998), 129 Ohio App.3d 781, 787, 719 N.E.2d 64, 68, where the Court of Appeals for Franklin County found a “use analysis” to be “inconsistent with established rules of statutory construction.” Contrary to appellees’ assertions, however, Drake-Lassie does not stand for the proposition that use standards are inapplicable to “any of the 14 specific exclusions” contained in
{¶ 27} The application or rejection of a use standard should not be an all-or-nothing proposition.
{¶ 28} A use standard may be applied to determine whether a vehicle constitutes excepted construсtion equipment because that exception is subject to the qualification that such equipment not be “employed in general highway transportation.” There has been some debate over whether, and to what extent, a use standard properly applies beyond the confines of the exception for construction equipment. See Floch v. Farmers Ins. Group of Cos. (1994), 97 Ohio App.3d 394, 397, 646 N.E.2d 902, 904; Putka, supra, 90 Ohio App.3d at 653, 630 N.E.2d at 383-384 (Nahra, P.J., dissenting); State v. Conner (1983), 13 Ohio App.3d 179, 13 OBR 214, 468 N.E.2d 320; State v. Devilbliss (C.P.1961), 16 O.O.2d 404, 406, 88
{¶ 29} However, we disagree with the statement in Putka that a use standard may generally be applied “in determining whether a vehicle is a motor vehicle within the meaning of the statute.” Id., 90 Ohio App.3d at 651, 630 N.E.2d at 382. A vehicle is a motor vehicle under
{¶ 30} Finally, appellees rely on Berry v. Motorists Mut. Ins. Co. (1983), 13 Ohio App.3d 228, 13 OBR 280, 468 N.E.2d 922, and Groff v. Motorists Mut. Ins. Co. (May 24, 1989), Summit App. No. 13919, unreported, 1989 WL 54705. However, neither the backhoe in Berry nor the payloader in Groff was employed in general highway transportation at the time of the accident. The accident in Berry occurred while the backhoe was being operated off a public road, and the аccident in Groff occurred while the payloader was performing construction work on a bridge, in a lane that was closed to traffic, with barrels having been set up to keep traffic out of the work area.
{¶ 31} For all of the foregoing reasons, we hold that for purposes of
{¶ 32} Accordingly, the judgment of thе court of appeals is reversed, and the cause is remanded to the trial court for further proceedings.
Judgment reversed and cause remanded.
Douglas, F.E. Sweeney and Pfeifer, JJ., concur.
Douglas, J., concurs separately.
Moyer, C.J., and Lundberg Stratton, J., dissent.
Cook, J., dissents.
Douglas, J., concurring.
{¶ 33} I concur in the well-reasoned opinion and judgment of the majority. While so doing I continue to adhere to my dissent in Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312, 662 N.E.2d 287.
MOYER, C.J., dissenting.
{¶ 34} In cases involving statutory interpretation, we are constrained by rules mandated both by legislative enactment and our own precedent. The first and foremost of these rules is that when the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to apply the rules of statutory interpretation. Symmes Twp. Bd. of Trustees v. Smyth (2000), 87 Ohio St.3d 549, 553, 721 N.E.2d 1057, 1061, citing Meeks v. Papadopulos
{¶ 35}
{¶ 36} Pursuant to
” ‘Motor vehicle’ means every vehicle propelled or drawn by power other than muscular power or power collected from overhead electric trolley wires, except * * * other equipment used in construction work and not designed for or employed in general highwаy transportation * * * .”
{¶ 37} As a matter of statutory interpretation, this language is plain and unambiguous, conveys a clear and definite meaning, and, therefore, leaves nothing for us to interpret. See Symmes Twp. Bd. of Trustees, 87 Ohio St.3d at 553, 721 N.E.2d at 1061. The majority, however, has read into this statutory language a “use standard” in an attempt to further clarify that which is already perfectly clear. This approach is contrary to well-established legal principles that exist to guide the courts, and it compels the conclusion that the majority‘s decision is not appropriate. See State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 517, 715 N.E.2d 1062, 1113 (Moyer, C.J., dissenting).
{¶ 39} In examining this language, the majority places particular emphasis on the clause “not designed for or employed in general highway transportation.” The majority concludes that the final clause, “general highway transportation,” controls the entire meaning of the statute. When the entire provision is read in its entirety, however, this emphasis is misplaced.
{¶ 40} The “other equipment” exception in
{¶ 41} Put more simply, “equipment used in construction work” suggests two possible images. The first is pickup trucks or automobiles used to transport people to and from the work site. The second type of equipment is heavy machinery, such as steamrollers or tractors, which perform the construction work.
{¶ 42} The authority relied upon by the majority further indicates why a “use standard” affronts the plain and unambiguous language of
{¶ 43} To quote the majority:
“[T]he application of a use standard is entirely consistent with the traffic law exemptions granted under
4511.04 , which provides:” ‘Sections
4511.01 to4511.78 , inclusive, section4511.99 , and sections4513.01 to4513.37 , inclusive of the Revised Code do not apply to * * * other equipment while actually engaged in work upon the surface of a highway within an
area designated by traffic control devices, but apply to such * * * vehicles when traveling to or from such work.
” ’ * * *’
“In addition, aside from references to ‘agricultural’ or ‘commercial’ tractors, each time the term ‘tractor’ appears generally in
R.C. Chapter 4511 , it is modified or qualified by the phrase ‘being used in constructing’ or ‘while being used in * * * construction.’ SeeR.C. 4511.64 and4511.69 . Thus, we cannot agree * * * that Badenhop extends to preclude a use standard from being applied to determine whether a nonagricultural tractor constitutes excepted construction equipment for purposes of immunity underR.C. 2744.02 .’ (Emphasis sic.) 91 Ohio St.3d 141, 147, __ N.E.2d __.”
{¶ 44} The majority overlooks an important distinction between
{¶ 45} Similar statutory provisions in
{¶ 46} As a practical matter, imposing a “use standard” on the language of
{¶ 47} It is evident from the language of
LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.
COOK, J., dissenting.
{¶ 48} I would affirm the judgment of the court of appeаls for the reasons expressed in its opinion.
Taft, Stettinius & Hollister, L.L.P., and Gerald J. Rapien; and Herd L. Bennett, for appellants.
Berlon & Timmel and David J. Balzano; and Christopher L. Englert, Preble County Assistant Prosecuting Attorney, for appellees.