541 N.E.2d 471 | Ohio Ct. App. | 1988
Plaintiff-appellant Abel Sanchez, Administrator of the Estate of Trini Sanchez, appeals from a summary judgment entered in the Clark County Court of Common Pleas in favor of defendant-appellee Clark County, Ohio ("the county"). After reviewing the record, we conclude that a genuine issue of material fact existed as to whether the county is liable under R.C.
The complaint alleged that Trini Sanchez failed to stop at the intersection because a tree located on property adjacent to Villa Road had become overgrown and overhanging tree limbs obscured the stop sign for traffic on Villa Road. According to the complaint, the county had actual or constructive notice of the foliage blocking the stop sign and was therefore liable under R.C.
The county filed a motion for summary judgment on June 8, 1987. Sanchez *98 filed a brief in opposition. In a decision and entry filed August 6, 1987, the trial court held that there was no genuine issue of material fact and that the county was entitled to judgment as a matter of law. The trial judge stated his reasoning as follows:
"The Court finds under R.C.
"A nuisance within the meaning of R.C.
"Therefore, since there is no defective condition in, upon or above the paved or traveled portion of the county road in this case, pursuant to R.C.
From the summary judgment in favor of the county, Sanchez appeals.
"The trial court erred to plaintiff's prejudice in granting defendant's motion for summary judgment."
The relevant statute, R.C.
"(A)(1) For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. 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.
"* * *
"(B) Subject to sections
"* * *
"(3) Political subdivisions are liable for injury, death, or loss to persons or property caused by their failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivisions open, in repair, and free from nuisance, except that it is a full defense to such 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.
"* * *
Sanchez argues on appeal that the duty imposed upon a political subdivision under R.C.
Since R.C.
"Traffic control signals, in this day of swift travel by high powered vehicles, are as necessary to orderly travel in urban areas as the surface of the road itself. Perhaps, in the past, traffic signals were of less importance than now, but they are now as much a part of our streets and highways as median strips, safety islands, or guard rails. In view of the obvious degree of reliance now placed in traffic control devices by users of the streets, it is difficult to perceive a greater nuisance to orderly urban street travel than a nonfunctioning or malfunctioning traffic control device. To hold otherwise, on the basis that the device is physically not a part of the roadway, would defy logic and frustrate the manifest legislative intent to keep the streets and highways free from nuisance. To say that a nonoperative traffic signal at an intersection of city streets is not a nuisance, but that a chuck hole at the same intersection is a nuisance, would be an over-technical distinction." Id. at 109, 48 Ohio Op. 2d at 107,
We are not persuaded by the county's argument that Fankhauser can be distinguished from the present case in that the traffic signal in Fankhauser was malfunctioning whereas the stop sign in this case, although partially blocked, was properly functioning. While it appears that the stop sign on Villa Road did not suffer from a physical defect, it may have been prevented from performing its intended function by virtue of the overhanging tree limbs. An obscured stop sign is as much an impediment to the safe flow of traffic as a malfunctioning traffic light or an obstruction in the road.
In support of its position that liability attaches under R.C.
In Dickerhoof v. Canton (1983),
In our opinion, a political subdivision's duty under R.C.
"The appositeness of rendering a summary judgment hinges upon the tripartite demonstration: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day *101 Warehousing Co. (1978),
The assignment of error is sustained.
Judgment reversed and cause remanded.
WILSON and BROGAN, JJ., concur.
"Municipal corporations shall have special power to regulate the use of the streets. The legislative authority of a municipal corporation shall have the care, supervision, and control of the public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the municipal corporation, and the municipal corporation shall cause them to be kept open, in repair, and free from nuisance."
"Thus, appellant is subject to liability to appellee under R.C.
"Appellee argues that a nuisance embraces only those conditions affecting the actual physical condition of the street itself * * *.
"More recent cases, however, have expanded this restrictive definition of nuisance." (Citing Fankhauser and Senko, supra.)