Ruwe v. Board of Township Trustees
505 N.E.2d 957
Ohio
1987
Check Treatment
Per Curiam.

Thе primary issue in this case is whether summary judgment was properly granted for appellant. We hold that summary judgment was properly granted and, accordingly, reverse the decision of the court of appeals.

The basis for this negligence action arises out of the duty placed upon municipal corporations under R.C. 723.01. That section provides: “Municipal corporations shall have special power to regulate the usе of the streets. The legislative authority of a municipal corporation shall have the care, supеrvision, and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the municipal corporation, and shall cause them to be kept open, in repair, and free from nuisanсe. ” (Emphasis added.) The principle embodied in R.C. 723.01 has been a subject of much review by this court. As its object, R.C. 723.01 places an obligation ‍‌​​​‌‌​‌​​​‌‌​​‌​​‌​‌​​‌​‌‌​​​‌​‌​‌‌​‌‌​‌​‌‌‌‌​‌‍on municipalities to keep highways and streets open for the purpose for which they are designed; that is, to afford the public a safe means of travel. Strunk v. Dayton Power & Light Co. (1983), 6 Ohio St. 3d 429, 430, 6 OBR 473, 475, 453 N.E. 2d 604, 605.

Paragraph one of the syllabus in Cleveland v. Amato (1931), 123 Ohio St. 575, 9 Ohio Law Abs. 606, 176 N.E. 227, states: “The duty imposed upon municipalities by the provisions of Section 3714, General Code [predecessor to R.C. 723.01], is the exercise of ordinаry care to keep its streets, sidewalks, and other public ways open, in repair and free from nuisancе. Liability for damages for failure to perform such duty cannot arise except upon proof either that its agents or officers actually created the faulty condition from which injury resulted or that it had notice thereof, actual or constructive.”

Appellees have brought this action alleging that appellant was nеgligent in failing to meet its duty to keep the public highways “free from nuisance.” There is no evidence presented that appellant created the nuisance or had actual notice thereof. Appellees maintain that the evidence in the record indicates that the muffler exhaust system was in close proximity to aрpellant’s corporation line for a period of time which was sufficient in length to find that appellant had constructive notice of the “nuisance.” Thus, appellees argue that the appellant was negligеnt in failing to “guard against” the entrance of such “nuisance” into its corporate limits. The court of appeals held that it was for the trier of fact to determine whether appellant was “negligent vis-a-vis the muffler and tail pipe’s presence on or near one of the city’s highways and whether the injuries sustained resulted therefrom.” (Emphasis added.) We disagree.

Appellant contends that in a nеgligence action under R.C. 723.01 it is error to charge a municipal corporation with constructive notice of a nuisance ‍‌​​​‌‌​‌​​​‌‌​​‌​​‌​‌​​‌​‌‌​​​‌​‌​‌‌​‌‌​‌​‌‌‌‌​‌‍while the nuisance in question exists outside the corporate limits of the municipality. We arе persuaded by this contention. It has often been *61stated that R.C. 723.01 must be strictly construed. Lovick v. Marion (1975), 43 Ohio St. 2d 171, 173, 72 O.O. 2d 95, 97, 331 N.E. 2d 445, 447; Gabris v. Blake (1967), 9 Ohio St. 2d 71, 74, 38 O.O. 2d 199, 201, 223 N.E. 2d 597, 600. R.C. 723.01 requires municipal corporations to keep the рublic highways and streets within their municipality open, in repair and free from nuisance. We refuse to place the additional burden of inspecting and maintaining the highways and streets of neighboring jurisdictions on a municipality. A municipal corporation is not an insurer against accidents upon its streets. Village v. Kallagher (1894), 52 Ohio St. 183, 186, 39 N.E. 144, 145. See, also, Taylor v. Cincinnati (1944), 143 Ohio St. 426, 447, 28 O.O. 369, 377, 55 N.E. 2d 724, 733.

In the cause sub judice, probative evidence2 before the trial court placed the muffler exhaust system within appellant’s corporate limits approximately one hour and fifteen minutes рrior to the accident. This same evidence demonstrated that the muffler exhaust system was near but not within appellant’s corporate limits at least twenty-four hours prior to the accident. The trial court considerеd the further factors that a muffler is a transient object and that it was on the highway in the sparsely populated outskirts of Wyoming on a Sunday afternoon. As stated in Taylor, supra, at 447, 28 O.O. at 377, 55 N.E 2d at 733: “ ‘The duty resting upon municipal corporations * * * to keep thеir streets and other public ways “open, in repair, and free from nuisance,” requires ‍‌​​​‌‌​‌​​​‌‌​​‌​​‌​‌​​‌​‌‌​​​‌​‌​‌‌​‌‌​‌​‌‌‌‌​‌‍reasonable cаre and vigilance, in view of all the surroundings, to keep such streets and ways in a reasonably safe condition for travel in the usual and ordinary modes, but does not exact that which is impracticable.* * *’ ” (Emphasis added.) Based upon the evidence presented and the forеgoing legal principles, we agree with the decision of the trial court and hold as a matter of law that thеre was no constructive notice to appellant of the muffler exhaust system’s presence of West Galbraith Road.

An additional issue in this action concerns a motion for a protective order pursuant to Civ. R. 26(C) whiсh was granted by the trial court in favor of appellant. That order was an exercise by the court of the discretion vested in it by Civ. R. 26(C). See State, ex rel. Gross, v. Marshall (1974), 39 Ohio St. 2d 92, 94, 68 O.O. 2d 54, 55, 314 N.E. 2d 170, 172. The standard for “abuse of discretion” is readily defined as more than error of law or judgmеnt, but implies an attitude on the part of the trial court that is unreasonable, arbitrary or unconscionable. State, ex rel. Cook, v. Zimpher (1985), 17 Ohio St. 3d 236, 240, 17 OBR 474, 477, 479 N.E. 2d 264, 266; State v. Maurer (1984), 15 Ohio St. 3d 239, 250, 15 OBR 379, 389, 473 N.E. 2d 768, 780; and Ojalvo v. Bd. of Trustees of Ohio State Univ. (1984), 12 Ohio St. 3d 230, 232, 12 OBR 313, 315, 466 N.E. 2d 875, 877. Wе find nothing akin to this ‍‌​​​‌‌​‌​​​‌‌​​‌​​‌​‌​​‌​‌‌​​​‌​‌​‌‌​‌‌​‌​‌‌‌‌​‌‍standard in the present case.

*62Civ. R. 56(C) provides that summary judgment shall be rendered only if there is no genuine issuе as to any material fact and the moving party is entitled to judgment as a matter of law. State, ex rel. Cuyahoga Cty. Hosp., v. Bur. of Workers’ Comp. (1986), 27 Ohio St. 3d 25, 28, 27 OBR 442, 444, 500 N.E. 2d 1370, 1373. We find that summary judgment was prоperly granted in favor of appellant.

Accordingly, we reverse the decision of the court of appeals and the judgment of the trial court is reinstated.

Judgment reversed.

Moyer, C.J., Sweeney, Locher, Holmes, Douglas, ‍‌​​​‌‌​‌​​​‌‌​​‌​​‌​‌​​‌​‌‌​​​‌​‌​‌‌​‌‌​‌​‌‌‌‌​‌‍Wright and H. Brown, JJ., cоncur.

Notes

The evidence consisted of various affidavits of witnesses who saw the muffler exhaust system along different portions of West Galbraith Road on February 9 and 10, 1980.