Ruckman v. SmithRuckman v. Smith
Michael D. Harlan, Gervelis & Harlan, LLC, 3790 Boardman Canfield Road, Canfield, OH 44406 (For Plaintiffs-Appellees).
John T. Mclandrich and Frank H. Scialdone, Mazanec, Raskin & Ryder Co., LPA, 100 Franklin‘s Row, 34305 Solon Road, Cleveland, OH 44139 (For Defendant-Appellants).
JOHN J. EKLUND, J.
{1} Appellants are the three Trumbull County Commissioners, Frank Fuda, Daniel Polivka, and Mauro Cantalamessa in their capacity as the Trumbull County Board of Commissioners, Randy Smith in his capacity the Trumbull County Engineer, and individual defendants Gregg Alberini (former highway superintendent) and Tom Klejka (former assistant highway superintendent). Appellants appeal following the Trumbull County Court of Common Pleas’ denial of summary judgment with respect to a complaint filed by James and Jennifer Ruckman.
{2} Appellants raise one assignment of error arguing that the trial court erred by denying summary judgment when they are entitled to the benefit of political-subdivision immunity pursuant to
{3} After review of the record and applicable caselaw, we find appellants’ assignment of error to have merit. The trial court erred in denying appellants’ cross-motion for summary judgment and finding that appellants were not entitled to political subdivision liability immunity. The court erred in finding that the roadway was not in repair at the time of the accident and erred in finding that the placement of an incorrect discretionary warning sign stripped appellants’ immunity. The judgment of the Trumbull County Court of Common Pleas is reversed, and the matter is remanded for further proceedings consistent with this opinion.
Substantive and Procedural History
{4} Both parties agree that the basic facts of this matter are undisputed. On October
{5} While Ruckman traveled on the road, he attempted to change lanes, his tire entered the milled portion of the street, and he was ejected from his motorcycle causing severe injury. Appellees filed a lawsuit claiming that the sign used to warn of the danger was the incorrect sign, which was an incorrect color, placed at an incorrect height, and in an incorrect location 1096 feet before the road hazard began. However, all parties agree that that Ohio Manual of Uniform Traffic Control Devices (OMUTCD) provides that the placement of a sign in this situation is permissive and not mandatory. Appellees argued that once Trumbull County placed a sign, the implementation of that decision is not immune from liability and must conform to the mandates of the OMUTCD.
{6} Appellees claim that the presence of the milling in the road created a dangerous condition, and that the road was not in a state of repair. They rely on James Valenta, P.E., who testified as a highway safety expert on behalf of appellees at
Assignment of Error and Analysis
{7} Appellant‘s raise one assignment of error which states:
{8} “THE LOWER COURT DENIED DEFENDANTS/APPELLLANTS THE BENEFIT OF IMMUNITY UNDER OHIO REVISED CODE CHAPTER 2744.”
{9} Generally, the denial of summary judgment is not a final, appealable order. Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 9. However, the Supreme Court of Ohio has held that “[w]hen a trial court denies a motion in which a political subdivision or its employee seeks immunity under
{10} The review of a summary judgment denying political-subdivision immunity is de novo and is governed by
{11} Summary judgment is appropriate when (1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion and it is adverse to the nonmoving party. Holliman v. Allstate Ins. Co., 86 Ohio St.3d 414, 415, 715 N.E.2d 532 (1999). “The initial burden is on the moving party to set forth specific facts demonstrating that no issue of material fact exists and the moving party is entitled to judgment as a matter of law.” Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant meets this burden, the burden shifts to the nonmoving party to establish that a genuine issue of material fact exists for trial. Id.
Political Subdivision Immunity:
{12} The Political Subdivision Tort Liability Act is codified at
{13} The first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or a proprietary
{14} In this case, the parties do not dispute that the county is a political subdivision and that it was engaged in a governmental function. Thus, our focus is on the second and third tiers of the analysis.
“In Repair” Exception:
{15} Our first inquiry is whether an exception to immunity applies. This case implicates
{16} The statute does not define the phrase “in repair.” The Supreme Court of Ohio has construed the word “repair” in this context to mean “the state of being in good or sound condition.” Pelletier at ¶ 19, quoting Webster‘s Third New International Dictionary 1923 (2002). In construing a statute imposing a duty on county commissioners to keep roads and bridges “in proper repair,” the court explained that “this language created ‘a duty on the commissioners only in matters concerning either the deterioration or disassembly of county roads and bridges.” Id., quoting Heckert v. Patrick, 15 Ohio St.3d 402, 406, 473 N.E.2d 1204 (1984). In the context of roadway conditions, courts have consistently construed “in repair” to include maintaining a road‘s condition, such as fixing holes. See Cerri v. Clemson Excavating, Inc., 11th Dist. Geauga No. 2018-G-0162, 2019-Ohio-1161, ¶ 20 (collecting cases).
{17} The threshold question before us is not whether the road was “safe” or “unsafe.” Instead, it is a question of whether the road was “in repair” - that is to say, in good or sound condition. See Pelletier, supra, at ¶ 19. A road can be unsafe and may or may not be in “in repair.” Conversely, a safe road may or may not be “in repair.” While appellees have focused their arguments on whether the road was unreasonably unsafe, we focus our analysis on the terms of the statute - “in repair.”
{18} “It has long been settled in Ohio that a municipal corporation is not an insurer of the safety of its streets.” Deckant v. City of Cleveland, 155 Ohio St. 498, 502, 99 N.E.2d 609 (1951). In 2003, the Legislature amended
{20} The General Assembly as the “arbiter of public policy in Ohio, has acted ‘to limit political-subdivision liability for roadway injuries and deaths[.]” Pelletier, supra, at ¶ 31, quoting Howard at ¶ 29. The purpose of the change in policy was to limit fiscal liability “by limiting a political subdivision‘s liability for regulating maintaining, and repairing public roads to the negligent failure to keep them in repair and to remove obstructions from them.” Id. If the road was in repair, the political subdivision is immune from liability and summary judgment in favor of appellants is appropriate. If the road was not in repair, then the political subdivision is not immune, and a jury should decide whether the political subdivision was negligent and whether its action or inaction was the proximate cause of the plaintiff‘s injury.
{21} The Dissent states that appellees have plead more than one proximate cause of Ruckman‘s injury: the first being the creation of the trench and the second being the failure to post the correct traffic control device. However, appellees, through Valenta‘s testimony, provide evidence of only one proximate cause of the accident - namely that the roadway was hazardous and unsafe, notwithstanding the existence of the trench, because appellants did not use appropriate warning signs. The resolution of this matter turns on appellants’ duty and immunity and appellees failed to carry the burden of overcoming appellants’ immunity under
{22} In Lakota v. Ashtabula, 11th Dist. Ashtabula No. 2015-A-0010, 2015-Ohio-3413, this court determined that a city was not entitled to immunity for an accident that occurred in an area of construction to repair a sinkhole on a public road. Id. at ¶¶ 1, 8. In that case, a motorcyclist encountered a portion of a public road that had been excavated and backfilled with gravel. Id. at ¶ 2. As the rider approached the excavated area, his motorcycle went into a depression in the excavated area, which resulted in him being ejected and sustaining injuries. Id.
{23} We held that the “in repair” exception “can apply when the city negligently fails to keep the road in repair during ongoing construction.” Id. at ¶ 33. Although the city “was in the process of repairing the sinkhole and excavated area, it had not completed the repair. The non-permanent repair had not yet fully remedied the damaged area and, before it was paved over, created a new problem for motorists * * *.” Id. at ¶ 30. We stated that “[a] repair that causes an additional danger to drivers cannot create a road that is ‘in repair.” Id.
{24} In Volny v. Portage County, 11th Dist. Portage No. 2021-P-0085, 2022-Ohio-338, 184 N.E.3d 925, we recently decided this very issue where the existence of a hole within the asphalt near to an active construction site suggested the existence of deterioration and that the
{25} In Volny, the county had created an asphalt-filled trench which “was a temporary condition awaiting final repair, i.e., paving.” Id. at ¶ 46. The road surface had several potholes in the repair area as well as asphalt debris and sand. Id. at ¶ 15. No citation was issued to Volny due to the poor road conditions. In both Volny and Lakota, we determined that the evidence presented a factual issue which supports a finding that the road was not “in repair” at the time of the accidents Id. at ¶¶ 15, ¶¶ 53 (evidence showed that the road surface had several pot holes, asphalt debris, sand, and repairs were being made on it); Lakota, supra, at ¶ 33 (a six to eight inch depression in the gravel with gravel strewn about the area created a genuine issue of material fact).
{26} Appellants argue that the road was in repair. For this they rely on Valenta, appellees’ expert, who admitted that the mere presence of the milled pavement did not make the road unreasonably dangerous. Appellants argue that Valenta‘s deposition testimony described the lack of appropriate signage as what made the road unreasonably dangerous. However, appellants’ argument misses the critical point. Whether the road was unreasonably unsafe is not directly related to whether the road is in repair. We review the immunity exception under
{27} In this case, the nature of the hazard was at most a 1.5 inch deep milled pavement trench rather than a six to eight inch deep depression with loose gravel or a large pothole as in Volny or Lakota. Appellees have provided evidence by way of affidavit and deposition testimony that, construed in a light most favorable to them, would suggest that the road was unsafe for motorcyclists. However, the threshold question is not a question of safety. Instead, it is a question of whether the road was “in repair.” Appellees failed to present evidence that the road was not in good or sound condition and instead provided evidence suggesting that the road was unsafe for motorcycle travel.
{28} In essence, appellees have asked this court to equate an unsafe road with a road that is not “in repair.” This we cannot do. Although, Valenta said that the road was unsafe for motorcycle travel, his testimony about this statement was qualified and did not state that the road itself was not in good or sound condition. We are mindful that the General Assembly has provided exceptions to immunity for roads that are not “in repair” and obstructions to public roads while excluding an exception to immunity for nuisance conditions. If the Legislature intended for exceptions to immunity to include a road that is hazard free, without blemish, reasonably safe, or some other similar term, it would have spoken. In short, unreasonably unsafe, or other similar concepts are not the basis for an exception to immunity.
{29} Valenta‘s affidavit states that “On October 10, 2015 Trumbull County negligently allowed a hazardous and unsafe roadway to exist along westbound East Market Street between Shaffer Driver and Clifton.” The affidavit said that “Trumbull County was in the process of repairing the
{30} Although Valenta‘s affidavit stated that the road had been milled, leaving a trench, his affidavit and deposition testimony did not assert facts indicating that this condition resulted in the road not being in good or sound condition. Instead, his affidavit explained that appellants “did not follow the Ohio Manual on Uniform Traffic Control Devices with regard to establishing temporary traffic control zones on roadways open for public travel.”
{31} It is telling that Valenta, as appellees’ own expert witness, stated in his deposition that with appropriate warning signs, the road at issue here would not constitute an unreasonably unsafe roadway for Ruckman‘s vehicle. Although, Valenta made clear that the 1.5 inch differential in the pavement constituted an unreasonably dangerous driving condition for a motorcycle, his deposition testimony indicated that the road was only unreasonably unsafe insofar as the appellants did not erect the appropriate traffic control devices in the construction area.
{32} A road with a sharp curve may be “in repair” for purposes of
{33} Valenta did not testify that the road itself was not “in repair.” Instead, he testified the road was unreasonably unsafe because it lacked appropriate warning signs. He said that road was unreasonably unsafe for travel for motorcyclists but that, notwithstanding the 1.5 inch deep trench, the appropriate signs would have made the road safe for Ruckman. This claim sounds in nuisance, which is no longer an exception to immunity under
{34} It must be observed that the use of the correct traffic control device would not affect whether the road was “in repair.” Whether the road was “in repair” would be true with or without the correct warning signs. The General Assembly‘s amendment of
{36} Appellees pled a case and provided evidence that tended to show that the road was unsafe when their burden was to demonstrate that the road was not in good or sound condition. Our holding today is also consistent with Lakota and Volny where the record did establish a genuine issue of material fact as to whether the road was “in repair.” Here, no genuine issue of material fact exists because the road would have been safe, notwithstanding the presence of the trench, had appropriate signs been present. A sign cannot alter whether a road is “in repair.”
{37} Further, the state of the road was distinguishable from our precedent in Lakota and Volny where in both cases witnesses described the road hazards as under construction, filled with debris, and containing large holes. In this case, the road was cleanly milled and did not have large holes or other debris in the surrounding area. Therefore, we find that appellees did not establish the “in repair” immunity exception under
Discretionary Traffic Control Devices:
{38} As noted above, all parties agree that the placement of warning signs in the case was discretionary under the OMUTCD.
{39} In issuing its denial of summary judgment, the trial court relied upon Franks v. Lopez, 69 Ohio St.3d 345, 632 N.E.2d 502 (1994) and Fowler v. Williams Cty. Commrs., 113 Ohio App.3d 760, 682 N.E.2d 20 (6th Dist.1996) for the proposition that “once the decision to install” certain traffic control devices “has been made, the implementation of that decision is not immune from liability.” Franks at 349. Franks did not address political subdivision immunity for a failure to keep a road in repair under
{40} The court reviewed the prior version of
{41} The court also addressed whether the existence of the trench and the placement of the backhoe in the road constituted a nuisance. Id. at 774. The court said that the placement of the backhoe created a question of fact as to nuisance while there was no question of fact regarding the trench because “the determination to engage in such a project involves a discretionary function on the part of the county engineer. See
{42} In Darby v. Cincinnati, 1st Dist. Hamilton No. C-130430, 2014-Ohio-2426, the First District addressed the 2003 amended version of
{43} The trial court in this case relied upon Franks and Fowler which are outdated caselaw construing now deleted statutory “nuisance” language from
{44} In relying on these cases, the court erred in concluding that the appellants’ decision to place a discretionary traffic control device required the placement of those signs to be in compliance with the OMUTCD and therefore stripped appellants’ immunity. This decision is not supported by the 2003 amendment of
{45} In short, we are aware of no controlling authority from an Ohio court holding that placing or failing to place a discretionary sign under the OMUTCD renders a roadway not “in repair.” Further, a discretionary sign is not statutorily part of the roadway under
{46} The incorrect placement of a discretionary sign under the OMUTCD cannot be the basis for an exception to immunity under
{47} As discussed above, appellees articulated a claim that the signage, coupled with state of the road at the time of the accident, created a nuisance. Valenta stated that the lack of the appropriate signs led to the road being unreasonably unsafe. However, the Legislature has acted to preclude a nuisance from stripping a political subdivision of immunity under
{48} As no exception to immunity applies under the second tier of the governing analysis, we find that the trial court erred in its denial of appellants’ cross-motion for summary judgment.
{49} For the foregoing reasons, the judgment of the Trumbull County Court of Common Pleas is reversed, and this matter is remanded for further proceedings consistent with this opinion.
MATT LYNCH, J., concurs,
MARY JANE TRAPP, J., concurs in part and dissents in part with Concurring/Dissenting Opinion.
MARY JANE TRAPP, J., concurs in part and dissents in part with Concurring/Dissenting Opinion.
{50} While I concur with the majority‘s opinion that the trial court erred in its determination that the placement of an incorrect discretionary warning sign stripped the county of its immunity, I dissent as to the majority‘s determination that no genuine issue of material fact remained for jury determination regarding the “in repair” exception to immunity under
{51} The evidence considered by the trial court in the summary judgment exercise showed that the day before the accident, a county engineering crew was performing a so-called “mill and fill” to repair potholes in the roadway. A milling machine affixed to a Bobcat grinded out the deteriorated portion of the asphalt. The resultant trench was to be filled with new asphalt, and the area rolled to compact that asphalt. There is no question that the crew left the job site without filling the open trench that Mr. Ruckman encountered.
{52} As noted by the majority, this court recently addressed the “in repair” exception in Volny v. Portage Cty., 2022-Ohio-338, 184 N.E.3d 925 (11th Dist.). In Volny, we observed that “[t]he statute does not define the phrase ‘in repair.’ The Supreme Court of Ohio has construed the word ‘repair’ in this context to mean “the state of being in good or sound condition.“” Pelletier[ v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210,] ¶ 19, quoting Webster‘s Third New International Dictionary 1923 (2002). In construing a statute imposing a duty on county commissioners to keep roads and bridges “in proper repair,” the court explained that ‘this language created “a duty on the commissioners only in matters concerning either the deterioration or disassembly of county roads and bridges.” Id., quoting Heckert v. Patrick, 15 Ohio St.3d 402, 406, 473 N.E.2d 1204 (1984). In the context of roadway conditions, courts have consistently construed ‘in repair’ to include maintaining a road‘s condition, such as fixing holes. See Cerri v. Clemson Excavating, Inc., 11th Dist. Geauga No. 2018-G-0162, 2019-Ohio-1161, 20 (collecting cases).” Volny at ¶ 37.
{54} Here, as in Volny, the road project was incomplete at the time of the accident. Mr. Volny‘s motorcycle wheel hit a pothole in the area of the roadway where the repairs were unfinished. Mr. Ruckman‘s motorcycle wheel hit a trench created by the milling machine that had yet to be filled.
{55} Here, as in Volny, the fact that the road project was incomplete at the time of the accident does not preclude application of the “in repair” exception.
{56} The majority also cites this court‘s decision in Lakota v. Ashtabula, 11th Dist. Ashtabula No. 2015-A-0010, 2015-Ohio-3413, appeal not accepted, 144 Ohio St.3d 1478, 2016-Ohio-467, 45 N.E.3d 245. In Lakota, we determined that a city was not entitled to immunity for an accident that occurred in an area of construction to repair a sinkhole on a public road. We held that the “in repair” exception “can apply when the city negligently fails to keep the road in repair during ongoing construction.” Id. at ¶ 33. Although the city “was in the process of repairing the sinkhole and excavated area, it had not completed the repair. The non-permanent repair had not yet fully remedied the damaged area and, before it was paved over, created a new problem for motorists * * * ” Id. at ¶ 30. We stated that “[a] repair that causes an additional danger to drivers cannot create a road that is ‘in repair.” Id.
{57} Despite acknowledging these germane cases, the majority attempts to distinguish this case from our precedent and inexplicably determines that the road was in repair based on two factors: one, the size of the roadway depression created by the roadwork that was a proximate cause of Mr. Ruckman‘s accident was, at the most, 1.5 inches deep, as compared to larger holes in Volny and Lakota; and two, despite evidence by way of Mr. Ruckman‘s expert witness’ opinion that the 1.5-inch deep trench was an unreasonably dangerous condition for a motorcycle, the pivotal evidence was that expert‘s other opinion relating to a different or alternative contributing cause; that is, the failure to post the proper warning sign was hazardous and made the roadway unsafe.
{58} The two opinions in evidence are not mutually exclusive.
{59} ”
{60} Proximate cause is “an act or failure to act that in the natural and continuous sequence directly produced the injury and without which the injury would not have occurred.” Ohio Jury Instructions, CV Section 405.01 (Rev. Feb. 11, 2017) (“OJI“); see Strother v. Hutchinson, 67 Ohio St.2d 282, 287, 423 N.E.2d 467 (1981). Proximate causation has been described as “some reasonable connection between the act or omission of the defendant and the damage the plaintiff has suffered.” Queen City Terminals, Inc. v. Gen. Am. Transp. Corp., 73 Ohio St.3d 609, 618, 653 N.E.2d 661 (1995), quoting Keeton, Dobbs, Keeton & Owen, Prosser and Keeton on the Law of Torts, Section 41, 263 (5th Ed.1984).
{61} “There may be more than one proximate cause of the injury.” OJI; Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 587, 575 N.E.2d 828 (1991). “The fact that some other cause combined with the negligence of a defendant in producing the injury does not relieve a defendant from liability so long as the plaintiff proves that the conduct of the defendant was a substantial factor in producing the harm.” OJI; see Strother at 287.
{62} As noted, Mr. Ruckman asserted two negligent acts. The first was the creation of the trench that was left unfilled. The second was the failure to properly post the correct warning sign. Mr. Ruckman‘s expert provided opinions creating a question of fact regarding each negligent act and each as a proximate cause or contributing factor of the accident. Because the posting of the warning sign is a discretionary act, the county is immune from liability, but it may not escape liability for leaving the roadway in a state of disrepair.
{63} Despite acknowledging that the General Assembly chose not to define the phrase “in repair,” the majority goes to great lengths to create a legally significant differentiation between a road that is “in repair” and a road that is “unsafe.” The majority concludes that the evidence failed to establish a genuine issue of material fact because the appellee‘s expert used the phrases “safe” and “unsafe” rather than the statutory language of “in repair” in his opinion testimony.
{64} The focus of the expert‘s testimony was the safety issue created by the lack of appropriate signage. This testimony was used to support the primary theory that the failure to install the appropriate warning sign to alert those on the roadway to a defect in the roadway created by the political subdivision was a proximate cause of the accident.
{65} The majority observes that the expert provided “evidence of only one proximate cause of the accident - namely that the roadway was hazardous and unsafe, notwithstanding the existence of the trench, because the appellants did not use appropriate warning signs.” From this observation the majority concludes that the appellees’ expert failed to put forward evidence establishing the road was not in repair. He did not need to do so.
{66} The majority misapprehends the nature of the summary judgment exercise. Appellees did not need an expert to establish whether this record presented a genuine issue of material fact as to whether the road was in disrepair when there was undisputed evidence that the roadway had a manmade trench cut into the asphalt during an uncompleted road repair project.
{67} I agree that the “threshold question” in this case is whether the road was in repair, that is, in good or sound condition, but as in Volny, when a political subdivision begins to repair a deteriorated section of a roadway by milling a trench and leaves the repairs unfinished and there is evidence that a motorcyclist entered the trench and flipped his bike, it is up to a jury to determine whether this roadway was out of repair. No expert testimony was needed to create an issue of fact in Volny, nor was it needed in this case.
{68} The determination of proximate cause or the issue of causation is generally for the determination of the jury, and it is not for the court to substitute its reasoning for that of the jury in a field which belongs peculiarly to the latter. Baldridge v. Wright Gas Co., 154 Ohio St. 452, 96 N.E.2d 300 (1951), paragraph three of the syllabus. Further, the determination of
{69} Having found the “in repair” exception to immunity in
{70} For these reasons, I respectfully concur in part and dissent in part. I would reverse the judgment of the trial court, in part, and remand the matter for further proceedings.