MICHAEL D. NIHISER, et al., Plaintiffs-Appellants, vs. HOCKING COUNTY BOARD OF COMMISSIONERS, et al. Defendants-Appellees.
Case No. 12CA18
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
Released: 08/30/13
[Cite as Nihiser v. Hocking Cty. Bd. of Commrs., 2013-Ohio-3849.]
DECISION AND JUDGMENT ENTRY
L. Jackson Henniger, Logan, Ohio, for Appellants.
Randall L. Lambert, Ironton, Ohio, for Appellees.
McFarland, P.J.
{¶1} Michael Nihiser and Vicki Devol appeal the trial court‘s summary judgment decision determining the Hocking County Board of Commissioners and William Shaw, County Engineer, are entitled to sovereign immunity under
{¶2} In light of our determination that the function of designating street numbers is a governmental function for which immunity is granted, that the function was properly delegated to Shaw, that no genuine issues of material fact exist, and that Appellees were entitled to judgment as a matter of law, we ovеrrule Appellants’ assignments of error. Accordingly, we affirm the decision of the trial court granting summary judgment in favor of Appellees.
FACTS
{¶3} Appellants, Michael Nihiser and Vicki Devol, are property owners in Hocking County. On December 30, 2010, Appellants filed a complaint naming Appellees Hocking County Board of Commissioners (hereinafter “Board“) and William Shaw (hereinafter “Shaw“), Hocking County Engineer, as defendants. The complaint alleged that Board, which
{¶4} Appellants’ complaint alleged damages in the amount of $250,000.00. A review of the record indicates Appellants believed that the value of their property was decreasеd as a result of having to cut trees down in order to place the driveway in a location that would be approved by Shaw. Appellants explained that they were selling log cabin lots where trees were valuable.
{¶5} Appellees filed an answer to the complaint on January 31, 2011, and subsequently filed a motion for summary judgment, on June 20, 2012. Appellants filed a memorandum contra on July 11, 2012. In a decision dated
{¶6} It is from this decision that Appellants now bring their timely appeal, assigning the following errors for our review.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED PLAINTIFF‘S [SIC] MOTION FOR SUMMARY JUDGMENT BECAUSE A GENUINE ISSUE OF MATERIAL FACT EXISTED.
II. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED PLAINTIFF‘S [SIC] MOTION FOR SUMMARY JUDGMENT BECAUSE A GENUINE ISSUE OF MATERIAL FACT EXISTED AS TO WHETHER THE DELEGATION OF THE AUTHORITY WAS PROPER.
III. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED PLAINTIFF‘S [SIC] MOTION FOR SUMMARY JUDGMENT BY HOLDING THAT THE DEFENDANTS WERE COVERED BY GOVERNMENTAL IMMUNITY.
IV. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED PLAINTIFF‘S [SIC] MOTION FOR SUMMARY
LEGAL ANALYSIS
{¶7} Although Appellants raise four separate assignments of error, their brief contains only one legal argument.
SUMMARY JUDGMENT STANDARD
{¶8} Appellate courts review trial court summary judgment decisions de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, appellate courts must independently review the record to determine if summary judgment is appropriate. In other words, appellate courts need not defer to trial court summary judgment decisions. See Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (1993); Morehead v. Conley, 75 Ohio App.3d 409, 411-412, 599 N.E.2d 786 (1991). Thus, to determine whether a trial court properly awarded summary judgment, an appellate court must review the
{¶9} Accordingly, trial courts may not grant summary judgment unless the evidence demonstrates that (1) no genuine issue as tо 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 after viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. See, e.g., Vahila v. Hall, 77 Ohio St.3d 421, 429-430, 674 N.E.2d 1164 (1997).
{¶10} Appellants contend that the trial court erred in granting summary judgment to Appellеes based upon the doctrine of sovereign immunity. Appellants argue that Board improperly delegated the authority to designate street numbers to Shaw, the County Engineer, and that Shaw impermissibly required a driveway be established prior to the issuance of a street number. Appellants further claim that genuine issues of material fact exist which should have precluded summary judgment.
R.C. 2744.02
{¶11} “The Political Subdivision Tort Liability Act, as codified in
{¶12} Once immunity is generally established, “the second tier of analysis is whether any of the five exceptions to immunity in subsection (B) apply.” Id. at ¶ 12. Only when one of the exceptions listed in
{¶13} Here, the general grant of immunity under
“[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.”
{¶14} In this case, the parties disagree over whether designating street numbers is a governmental or a proprietary function.
“The board of county commissioners may designate street names and assign numbers to buildings along the streets in unincorporated areas. The owners of such buildings shall number or renumber such buildings in accordance with the numbers assigned by the county commissioners.”
Clearly, boards of county commissioners are given the authority to perform this function. We must determine, howevеr, whether the function is governmental or proprietary.
{¶15}
“(G)(1) ‘Proprietary function’ means a function of a political subdivision that is specified in division (G)(2) of this section or that satisfies both of the following:
(a) The function is not one described in division (C)(1)(a) or (b) of this section and is not one specified in division (C)(2) of this section;
(b) The function is one that promotes or preserves the public peace, health, sаfety, or welfare and that involves activities that are customarily engaged in by nongovernmental persons.”
(Emphasis added).
Designating street numbers is not one of the functions listed in
{¶16}
“(C)(1) ‘Governmental function’ means a function of a political subdivision that is specified in division (C)(2) of this section оr that satisfies any of the following:
(a) A function that is imposed upon the state as an obligation of sovereignty and that is performed by a political subdivision voluntarily or pursuant to legislative requirement;
(b) A function that is for the common good of all citizens of the state;
(c) A function that promotes or preserves the public peace, health, safety, or welfare; that involves activities that are not engaged in or not customarily engaged in by nongovernmental persons; and that is not specified in division (G)(2) of this section as a proprietary function.”
As already discussed, designating street numbers is not specified in
{¶17} First, we find the function of designating street numbers and the development of an orderly system and process to do so serves the common good of all citizens of the state in accordance with
“(B) Subject to sections
2744.03 and2744.05 of the Revised Code, a politiсal subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:(1) Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any mоtor vehicle by their employees when the employees are engaged within the scope of their employment and authority. The following are full defenses to that liability:
(a) A member of a municipal corporation police department or any other police agency was operating a motor vehicle while responding to an emergency call and the operation of the vehicle did not constitute willful or wanton misсonduct;
(b) A member of a municipal corporation fire department or any other firefighting agency was operating a motor vehicle while engaged in duty at a fire, proceeding toward a place where a fire is in progress or is believed to be in progress, or answering any other emergency alarm and the operation of the vehicle did not constitute willful or wanton misconduct;
(c) A member of an emergency medical service owned or operated by a political subdivision was operating a motor vehicle while responding to or completing a call for emergency medical care or treatment, the member was holding a valid commercial driver‘s license issued pursuant to Chapter 4506. or a driver‘s license issued pursuant to Chapter 4507. of the Revised Code, the operation of the vehicle did not constitute willful or wanton misconduct, and the operation complies with the precautions of section
4511.03 of the Revised Code.(2) Except as otherwise provided in sections
3314.07 and3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.
(3) Except as otherwise provided in section
3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads, except that it is a full defense to that liability, when a bridge within a municipal corporation is involved, that the municipal corporation does not have the responsibility for maintaining or inspecting the bridge.(4) Except as otherwise provided in section
3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of thеir employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility, as defined in section2921.01 of the Revised Code.(5) In addition to the circumstances described in divisions (B)(1) to (4) of this section, a political subdivision is liable fоr
injury, death, or loss to person or property when civil liability is expressly imposed upon the political subdivision by a section of the Revised Code, including, but not limited to, sections
2743.02 and5591.37 of the Revised Code. Civil liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon a political subdivision, because that section provides for a criminal penalty, bеcause of a general authorization in that section that a political subdivision may sue and be sued, or because that section uses the term “shall” in a provision pertaining to a political subdivision.”
Here, the exception contained in
{¶20} As set forth above, Lyons v. Teamhealth Midwest Cleveland, et al., supra, involved the question of whether the county‘s provision of emergency dispatch services was a governmental or a proprietary function, and whether the county had sovereign immunity related to the performance of that function. Also addressed as part of the analysis was the fact that the county did not have an ambulance service and thus contracted with private companies to respond to emergency calls. Id. at ¶ 5. Thus, the court was faced with the question of “whether the County can maintain their statutory immunity for retaining limited involvement in communicating calls for emergency help to the рrivate entity through the provision of dispatch services.” Id. at ¶ 45.
{¶21} In response to the issue raised, the Teamhealth court reasoned as follows:
“This court has previously held that ’
R.C. 2744.01(C) does not exclude from the definition of governmental functions those functions sometimes performed by private entities for political subdivisions. In fact, many of the specifically enumerated governmental functions set forth inR.C. 2744.01(C)(1) are commonly performed by private entities for political subdivisions, including, but not limited to, ambulance services, * * *. Where a service is specifically defined as a gоvernmental function, what entity actually performs them or a part of them on behalf of a political subdivision has no bearing on their status as governmental pursuant toR.C. 2744.01(C)(1) .’ McCloud v. Nimmer (1991), 72 Ohio App.3d 533, 595 N.E.2d 492, emphasis added.” Id. at ¶ 46.
Thus, in Teamhealth, the performance of a governmental function on behalf of the county by a private entity for profit was at issue and it was determined that such a structure did not alter the classification of the function as governmental, nor did it destroy the political subdivision‘s immunity from liability in relation thereto. Id.
{¶22} Here, the governmental function of designating street numbers was delegated to Shaw, as county engineer, an actual employee of the
{¶23} Further, and much like the trial court, we find nothing improper with respect to the County Engineer‘s system of designating street numbers only after driveways have been established.
{¶24} In summary, we have determined that the Hocking County Board of Commissioners is a political subdivision entitled to immunity
{¶25} Thus, we conclude that the trial court properly granted Appellees’ motion for summary judgment. Accordingly, the assignments of
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and thаt the Appellees recover of Appellants costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J. & Hoover, J.: Concur in Judgment Only.
For the Court,
BY: _________________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.