PELLETIER, APPELLEE, v. THE CITY OF CAMPBELL, APPELLANT, ET AL.
No. 2017-0088
Supreme Court of Ohio
Decided June 5, 2018
Slip Opinion No. 2018-Ohio-2121
KENNEDY, J.
Submitted February 14, 2018
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Pelletier v. Campbell, Slip Opinion No. 2018-Ohio-2121.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2018-OHIO-2121
PELLETIER, APPELLEE, v. THE CITY OF CAMPBELL, APPELLANT, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Pelletier v. Campbell, Slip Opinion No. 2018-Ohio-2121.]
Torts—Political-subdivision immunity—
(No. 2017-0088—Submitted February 14, 2018—Decided June 5, 2018.)
APPEAL from the Court of Appeals for Mahoning County, No. 15 MA 0220, 2016-Ohio-8097.
{¶ 1} This discretionary appeal from the Seventh District Court of Appeals presents the question whether the Political Subdivision Tort Liability Act,
{¶ 2} Because the language of
{¶ 3} Accordingly, the city is entitled to judgment as a matter of law, and we reverse the judgment of the court of appeals and remand the matter to the trial court to dismiss the claims against the city.
Facts and Procedural History
{¶ 4} On August 26, 2013, Pelletier was driving down Sanderson Avenue in Campbell, Ohio, to attend an orientation related to her employment as a high-school nurse, when she came to the intersection with 12th Street. Traffic on Sanderson Avenue is controlled by a stop sign, while traffic on 12th Street has the right-of-way and no stop sign. According to Pelletier, she did not see the stop sign because trees or large bushes in the “devil strip”—what the parties call the grassy area between Sanderson Avenue and the sidewalk—blocked it from her view. Although she saw the intersection, she did not slow down, brake, or look for other vehicles on 12th Street before proceeding through it. As a result of her failure to yield the right-of-way, she collided with another vehicle entering the intersection on 12th Street.
{¶ 5} In March 2014, Pelletier brought this personal-injury action against the city, Danny Saulsberry (the owner of the land on which the foliage grew), the Bank of New York Mellon (which had initiated foreclosure proceedings on Saulsberry‘s property), and Safeguard Properties, L.L.C. (which had previously contracted to maintain the property for the bank), alleging that their failure to maintain the devil strip to ensure that the stop sign was visible to approaching traffic caused her injuries. The bank and Safeguard filed cross-claims against the city, seeking indemnification and contribution. Pelletier later settled her claims against Safeguard.
{¶ 6} The city moved for summary judgment against Pelletier and the bank, asserting that it is immune from liability pursuant to
{¶ 7} The trial court denied the city‘s motion for summary judgment, and the court of appeals affirmed, holding that the city could be liable for negligently failing to keep public roads in repair “[w]here, as here, a mandated traffic control device (which is considered to be, by definition, a public road) no longer serves its purpose because of some extraneous factor,” such as foliage blocking it. 2016-Ohio-8097, 75 N.E.3d 779, ¶ 22 (7th Dist.). It also concluded that “[w]hether or not the failure to remove the foliage here was an obstruction
{¶ 8} The city appealed to this court, presenting two propositions of law:
Because an “obstruction” for purposes of determining the immunity of a political subdivision in all claims which allege a negligent failure to maintain a “public road” is confined to a condition which blocks or clogs the roadway, roadside foliage which does not block or clog travel or render a traffic control device indiscernible does not qualify as an obstruction.
“Failure to keep public roads in repair” pursuant to the immunity exception set forth in
R.C. 2744.02(B)(3) , requires that the actual public road be in a deteriorated, damaged or disassembled state from that existing at construction, placement, or reconstruction.
Positions of the Parties
{¶ 9} On appeal to this court, the city maintains that the appellate court erred in deciding that a political subdivision can be held liable for failing to keep a stop sign “in repair” based on “extraneous circumstances entirely unrelated to the actual condition” of the sign. It points to our decision in Heckert v. Patrick for the proposition that a road is “in proper repair” when it is not deteriorated or disassembled. See 15 Ohio St.3d 402, 406, 473 N.E.2d 1204 (1984). The city contends that liability should not be imposed for the failure to trim or remove tree limbs that do not affect the condition of the roadway itself—and here, it maintains, there is no evidence that the stop sign was deteriorated, disassembled, or in any way damaged. It further argues that the foliage was not an “obstruction” as defined by this court in Howard v. Miami Twp. Fire Div., i.e., “an obstacle that blocks or clogs the roadway and not merely a thing or condition that hinders or impedes the use of the roadway or that may have the potential to do so,” 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, ¶ 30. Here, the foliage did not completely block the stop sign or make it indiscernible. The city asserts that the General Assembly amended
{¶ 10} Pelletier responds that the duty to keep public roads in repair requires a political subdivision “to maintain the proper operation and functioning” of traffic-control signals that fall within the definition of “public road.” She maintains that the stop sign on Sanderson Avenue was indiscernible and that therefore it was not functioning as designed and cannot be considered “in repair.” For this reason, she contends, the city had a statutory duty to trim or remove limbs that were causing the stop sign to be “rendered wholly ineffective or even significantly ineffective.” She argues that this court‘s decision in Heckert is distinguishable, because that case was decided prior to the enactment of
{¶ 11} Accordingly, we are asked to decide whether the failure to remove foliage growing in the devil strip 34 feet, two inches from a stop sign constitutes either a failure to keep a public road in repair or a failure to remove an obstruction from a public road.
Law and Analysis
Standard of Review
{¶ 12} Whether a party is entitled to immunity is a question of law properly determined by the court prior to trial pursuant to a motion for summary judgment. Conley v. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992); see also Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123, 2013-Ohio-4530, 998 N.E.2d 437, ¶ 17 (noting the importance of deciding a political subdivision‘s entitlement to immunity before trial).
{¶ 13} The review of a summary judgment denying political-subdivision immunity is de novo and is governed by the summary-judgment standard set forth in
Summary judgment may be granted when “(1) [n]o 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.”
(Brackets sic.) 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12, quoting Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
Statutory Construction
{¶ 14} This case presents a straightforward question of statutory interpretation. Our duty in construing a statute is to determine and give effect to the intent of the General Assembly as expressed in the language it enacted. Griffithv. Aultman Hosp., 146 Ohio St.3d 196, 2016-Ohio-1138, 54 N.E.3d 1196, ¶ 18; Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 20.
Political-Subdivision Immunity
{¶ 15} Determining whether a political subdivision is immune from tort liability pursuant to
“The first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or proprietary function. * * * However, that immunity
is not absolute. R.C. 2744.02(B) ; Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28, 697 N.E.2d 610.“The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in
R.C. 2744.02(B) apply to expose the political subdivision to liability. Id. at 28, 697 N.E.2d 610. At this tier, the court may also need to determine whether specific defenses to liability for negligent operation of a motor vehicle listed inR.C. 2744.02(B)(1)(a) through (c) apply.“If any of the exceptions to immunity in
R.C. 2744.02(B) do apply and no defense in that section protects the political subdivision
from liability, then the third tier of the analysis requires a court to determine whether any of the defenses in
R.C. 2744.03 apply, thereby providing the political subdivision a defense against liability.”
(Ellipsis sic.) Riffle v. Physicians & Surgeons Ambulance Serv., Inc., 135 Ohio St.3d 357, 2013-Ohio-989, 986 N.E.2d 983, ¶ 15, quoting Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7-9.
Regulation, Maintenance, and Repair of Public Roads
{¶ 16} Our focus is on the second tier of the analysis, because it is not disputed that regulating, maintaining, and repairing Sanderson Avenue, including its traffic signs, is a governmental function. See
{¶ 17}
{¶ 18} The parties do not dispute that the Ohio Manual of Uniform Traffic Control Devices required a stop sign on Sanderson Avenue at 12th Street and that the stop sign at issue here is therefore part of the public road.
Keeping Public Roads “in Repair”
{¶ 19} Pursuant to
{¶
{¶ 21} Here, there is no showing that the stop sign was not in good or sound condition or that it was otherwise deteriorated or disassembled. In fact, the only conclusion that may be drawn from the evidence in the record, which includesphotographs of the stop sign from different angles, is that the sign was in repair at the time of the accident.
{¶ 22} Accordingly, the city was entitled to summary judgment on claims that it negligently failed to keep the public road in repair.
Removing Obstructions from Public Roads
{¶ 23} The city may also be held liable for injury caused by the “negligent failure to remove obstructions from public roads.”
{¶ 24} The General Assembly enacted the current version of
{¶ 25} We adhere to our holding in Howard explaining what an obstruction is. But that definition, standing alone, does not resolve the question here: When does a political subdivision have a duty to remove a potential obstruction from amandatory traffic-control device that is part of the public road? Accordingly, although the parties focus on the meaning of the term “obstructions” as we construed it in Howard, that word must be read in the context of the whole provision creating the duty to remove obstructions from public roads. See
{¶ 26} Because the statute does not define the word “from,” we construe it according to its common usage.
{¶ 27} The duty to “remove obstructions from public roads” therefore indicates that the obstruction must originate in a specific location: the public road. And because the word “from” denotes a specific place, it cannot refer to conditions that are only near or in the vicinity of public roads. See State v. Swidas, 133 Ohio St.3d 460, 2012-Ohio-4638, 979 N.E.2d 254, ¶ 20. Rather, a political subdivision has a duty to remove obstructions that are on public roads, and pursuant to the statutory definition of “public roads,” that includes only obstructions that are on a roadway, on a bridge, or on a mandated traffic-control device.
{¶ 28} For this reason, although a political subdivision is not immune from liability for the negligent failure to remove an obstruction from a stop sign mandated by the Ohio Manual of Uniform Traffic Control Devices,
{¶ 29} The General Assembly could have imposed a general duty on political subdivisions to maintain the vegetation along public roads, yet it chose not to do so, and it specifically excluded the devil strip from the definition of the term “public road.” See
{¶ 30} The city was therefore entitled to summary judgment on claims alleging that it negligently failed to remove an obstruction from a public road.
Conclusion
{¶ 31} The General Assembly, the arbiter of public policy in Ohio, has acted “to limit political-subdivision liability for roadway injuries and deaths,” Howard, 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, at ¶ 29, with a purpose to preserve “ ‘the
{¶ 32} Rather than second-guess the policy decisions of the legislative branch, “[o]ur role, in exercise of the judicial power granted to us by the Constitution, is to interpret and apply the law enacted by the General Assembly.” Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, ¶ 29. And because
{¶ 33} In this case, the stop sign was in repair, because it was in good or sound condition and was not deteriorated or disassembled. And because the foliage was not on the stop sign, the city had no obligation to remove it from the devil strip. No genuine issues of material fact remain, the city is immune from liability, and the trial and appellate courts erred in failing to render judgment in its favor.
{¶ 34} Accordingly, we reverse the judgment of the Seventh District Court of Appeals and remand the matter to the trial court for it to dismiss the claims against the city.
Judgment reversed and cause remanded.
O‘DONNELL, FRENCH, FISCHER, and DEWINE, JJ., concur.
O‘CONNOR, C.J., concurs in part and dissents in part, with an opinion joined by HARSHA, J.
WILLIAM H. HARSHA, J., of the Fourth District Court of Appeals, sitting for DEGENARO, J.
O‘CONNOR, C.J., concurring in part and dissenting in part.
{¶ 35} I agree with the majority that appellee, Judith Pelletier, failed to establish that the stop sign on Sanderson Avenue at 12th Street in Campbell was not in good repair on August 26, 2013, and I concur that appellant, the city of Campbell, was entitled to summary judgment on the claim that it negligently failed to keep the public road in repair. However, I disagree with the majority‘s interpretation of the exception to immunity that applies when an injury is caused by a political subdivision‘s “negligent failure to remove obstructions from public roads,”
{¶ 36} The General Assembly amended
{¶ 37} In holding that the city is entitled to summary judgment on the question of its liability for negligently failing to remove an obstruction from the public road, the majority focuses almost exclusively on the meaning of the word “from,” and barely considers the word “obstruction.” The definition of “obstruction” is “something that obstructs or impedes” or “a condition of being clogged or blocked.” Webster‘s
{¶ 38} The majority interprets the statute to require a plaintiff to establish that an obstruction is “on” a traffic-control device in order to create a risk of liability, but there is no question that an object can obstruct or block a traffic-controldevice without literally being on it. The majority effectively rewrites the statute by interpreting the word “from” to mean “on” based on a single definition of the word “from” that the majority selects out of multiple offerings in a dictionary.
{¶ 39} Importantly, if the General Assembly had intended the immunity exception to exist only when an obstruction was “on” a public road, it could have used the word “on” instead of “from.” It did not.
{¶ 40} The majority analogizes the removing of an obstruction “from” a stop sign to the act of taking a dime “from” a pocket, but deciding the case based on this definition simply does not make sense. Interpreting the statute to require that the obstacle literally touch the traffic-control device nearly eliminates blocked traffic-control devices from the liability exception because of the low likelihood that a traffic-control device will have an obstruction physically on it. But in “enacting a statute, it is presumed that * * * [t]he entire statute is intended to be effective.”
{¶ 41} A simple example highlights the shortcomings of the majority‘s analysis. Every driver in Ohio is concerned with the practical question whether a stop sign can be seen clearly from the road. From the perspective of a driver, it does not matter whether foliage touching a stop sign renders it unviewable or whether a tree growing two feet in front of it, but not touching it, does. Either way, the sign is impossible to see—thereby creating a dangerous situation. The majority, however, is not concerned with this practical reality faced by drivers across Ohio. It believes there is a difference between obstructing a stop sign with foliage from a tree planted two feet away and not touching it and foliage from a tree planted two feet away and actually touching it—even if under both scenarios, the stop sign is equally obstructed.
{¶ 42} We previously concluded that the General Assembly “used the word ‘obstructions’ in a deliberate effort to impose a condition more demanding than ashowing of ‘nuisance’ in order for a plaintiff to establish an exception to immunity.” Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, ¶ 29. In Howard, we considered whether ice on a roadway was an obstruction. Id. at ¶ 15-17. We concluded that “an ‘obstruction’ must be an obstacle that blocks or clogs the roadway and not merely a thing or condition that hinders or impedes the use of the roadway or that may have the potential to do so.” Id. at ¶ 30. Because “public roads” includes the traffic-control device at issue in this case, it is appropriate to replace “roadway” as used in Howard with “stop sign.”1 The result is that an “obstruction” must be an obstacle that
{¶ 43} The majority‘s narrow interpretation of “from” is also incompatible with the testimony legislators heard prior to voting on the 2002 amendments that added the words “negligent failure to remove obstructions from public roads” to
Landes, an attorney testifying on behalf of the County Commissioner‘s Association, stated at a Senate committee hearing that the section of the bill pertaining to roadway liability would not change the law substantially but would make it much clearer with the addition of the term “negligence.” Mark Landes, Testimony on Behalf of the County Commissioner‘s Association, Senate State and Local Government and Veterans Affairs Committee, Meeting Report, Hannah Capitol Connection (June 6, 2001).
{¶ 44} It is evident, based on this testimony and our own precedent, that the General Assembly‘s two key motivations in amending the law were to avoid liability for lawsuits brought against political subdivisions for nuisances rather than true obstructions and to provide immunity to political subdivisions that had not been at least negligent in failing to remove obstructions. As evidenced by the General Assembly‘s decision to continue including certain traffic-control devices in the definition of “public roads,” the 2002 amendments did not eliminate liability for a city‘s negligent failure to remove obstacles obstructing mandatory stop signs, and there is no evidence that legislators intended to add a requirement that the obstacle be touching the public road.
{¶ 45} As we did in Howard, this court should focus its inquiry on whether the public road (in this case, the stop sign) is blocked in a way that renders the stop sign wholly unserviceable, not merely more difficult to see. Accordingly, to the extent that an obstacle is actually blocking a traffic-control device from the view of a driver at all distances in which it would be effective, I would hold that a political subdivision may be liable for negligently failing to remove the obstruction, pursuant to
{¶ 46} This court did not accept a proposition of law asserting that the city of Campbell was entitled to immunity under this clarified standard. But contrary to the decisions of the trial and appellate courts below, I would conclude that the trial court, not the jury, is responsible for resolving the immunity question. See
Conley v. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992), quoting Roe v. Hamilton Cty. Dept. of Human Servs., 53 Ohio App.3d 120, 126, 560 N.E.2d 238 (1st Dist.1988) (“ ‘Whether immunity may be invoked is a purely legal issue, properly determined by the court prior to trial’ ”). That it is necessary to consider the facts in order to determine whether the city negligently failed to remove an obstruction does not transform the immunity question into one that cannot be answered by the court.
HARSHA, J., concurs in the foregoing opinion.
Rossi & Rossi and Gregg A. Rossi, for appellee.
Baker, Dublikar, Beck, Wiley & Mathews, Gregory A. Beck, James F. Mathews, and Tonya J. Rogers, for appellant.
Giorgianni Law, L.L.C., and Paul Giorgianni, urging affirmance for amicus curiae Ohio Association for Justice.
Brosius, Johnson & Griggs, L.L.C., Peter N. Griggs, Donald F. Brosius, and Jennifer L. Huber, urging reversal for amici curiae Ohio Township Association and Coalition of Large Ohio Urban Townships.
Collins, Roche, Utley & Garner, L.L.C., and Kurt D. Anderson, urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.
Isaac, Wiles, Burkholder & Teetor, L.L.C., Mark Landes, Andrew N. Yosowitz, and Shawn K. Judge, urging reversal for amici curiae County Commissioners Association of Ohio, Ohio Municipal League, and County Engineers Association of Ohio.
Joseph Martuccio, Canton Law Director, and Kevin R. L‘Hommedieu, Chief Counsel, urging reversal for amicus curiae city of Canton.
Andrea Scassa, Massillon Law Director, urging reversal for amicus curiae city of Massillon.
Jennifer L. Arnold, Alliance Law Director, urging reversal for amicus curiae city of Alliance.