SANDERBECK, APPELLEE, v. COUNTY OF MEDINA ET AL., APPELLANTS.
No. 2010-1654
Supreme Court of Ohio
September 20, 2011
130 Ohio St.3d 175, 2011-Ohio-4676
Submitted June 8, 2011
PFEIFER, J., concurs in judgment only.
Duwel Law, David M. Duwel, and Todd T. Duwel, for appellee.
Scheuer Mackin Breslin, L.L.C., and Todd D. Penney, for appellant.
Bricker & Eckler, L.L.P., Donald R. Keller, and Vladimir P. Belo, urging reversal for amicus curiae, Ohio Management Lawyers Association.
{¶ 1} The cause is dismissed, sua sponte, as having been improvidently accepted.
O‘CONNOR, C.J., and PFEIFER, CUPP, and MCGEE BROWN, JJ., concur.
LUNDBERG STRATTON, O‘DONNELL, and LANZINGER, JJ., dissent.
O‘DONNELL, J., dissenting.
{¶ 2} This case presents a question of great significance that affects political subdivisions and their residents across this state: whether a political subdivision may be deprived of its sovereign immunity and forced to defend against an allegation that a roadway it maintains contributed to an accident based only on the opinion of an expert that the roadway lacked adequate skid resistance.
{¶ 3} The decision of the court of appeals in this case subjects political subdivisions to potential liability for automobile accidents that occur within their territorial limits, based on nothing more than an expert‘s claim that the road is
{¶ 4} On March 4, 2006, Michelle Sanderbeck rode in the back seat of a vehicle driven at a high rate of speed by 16-year-old Steven W., as it approached an S curve on East Smith Road in Medina County. The driver lost control of the vehicle, crossed the eastbound lane of traffic, left the road, and drove into a drainage ditch, flipping the vehicle onto its top and coming to rest on a stone retaining wall. Michelle died in that crash.
{¶ 5} Raymond Sanderbeck (individually and as administrator of Michelle‘s estate) filed a wrongful-death action against Medina County, asserting that it had negligently, recklessly, and willfully and wantonly failed to keep East Smith Road in repair, proximately causing his daughter‘s death.
{¶ 6} The county asserted its political-subdivision immunity, but Sanderbeck contended that an exception to the county‘s immunity applied pursuant to
{¶ 7} Stanford explained that roadway curves have a characteristic known as “critical speed,” which is “the speed at which the tires of a turning vehicle attempting to negotiate the curve will begin to sideslip, often resulting in a loss of control of the vehicle.” Stanford further testified that roads also have a “skid number” based on their coefficient of friction that relates to their skid resistance, and he asserted that a high-volume roadway like East Smith Road is considered out of repair if it has a skid number of 38 or less. He therefore believed that the “worn out” condition of East Smith Road contributed to the accident because, at the time of the crash, the critical speed of the curve was 45 m.p.h. or less and the road had a skid number of only 25.
{¶ 8} The trial court denied the county‘s motion for summary judgment, and the Ninth District upheld that decision, holding that the testimony of Sanderbeck‘s expert established a genuine issue of material fact regarding the claim that the county had failed to keep the road in repair.
{¶ 10} This case concerns an issue of public and great general interest: whether a political subdivision may be deprived of a benefit of its sovereign immunity based only on the opinion of an expert that the skid resistance of the road fell below a certain theoretical threshold level at the time of an accident, without knowing the skid resistance of the road at the time of its construction.
{¶ 11}
{¶ 12} Nonetheless,
{¶ 13} In my view, the testimony of an expert regarding the adequacy of a roadway‘s skid resistance at the time of an accident does not without more establish that the road is out of repair for purposes of
{¶ 14}
{¶ 16} Here, Sanderbeck presented expert testimony regarding the skid resistance of the road at the time of the accident, but he presented no evidence establishing its skid resistance at the time of design and construction. In my view, testing regarding the skid resistance of the road at the time of the accident fails to establish a genuine issue of material fact regarding his claim that Medina County is liable for negligent failure to keep public roads in repair.
{¶ 17} The General Assembly, as the final arbiter of public policy in Ohio, has intended “to limit political-subdivision liability for roadway injuries and deaths,” Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, ¶ 29, with a purpose to preserve “the fiscal integrity of political subdivisions.” Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 23, quoting Wilson v. Stark Cty. Dept. of Human Servs. (1994), 70 Ohio St.3d 450, 453, 639 N.E.2d 105; see also Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, 889 N.E.2d 521, ¶ 34. The court of appeals’ decision in this case frustrates that policy and imposes on political subdivisions the duty to defend in numerous cases raising claims similar to those presented here, exposing them to potential liability for all accidents occurring on roads within their territorial limits. I would prefer to decide the issues here, review the evidence to determine whether the county breached its duty to keep the roadway in repair, and further consider the immunity granted to political subdivisions and the application of
{¶ 18} Because the majority dismisses this appeal as having been improvidently accepted without reaching its merits, I respectfully dissent.
LUNDBERG STRATTON, J., concurs in the foregoing opinion.
LANZINGER, J., dissenting.
{¶ 19} I respectfully dissent from the majority‘s decision to dismiss this appeal as having been improvidently accepted. We have been given the opportunity to set forth parameters with respect to the sufficiency of evidence needed to create a material issue of fact on whether a road is kept “in repair,” thus subjecting a political subdivision to the possibility of liability under
I. Case Background
{¶ 21} This case arises from a tragic, single-car collision that occurred on March 4, 2006, in Medina County, resulting in the death of Michelle L. Sanderbeck. The driver, who was exceeding the posted advisory speed limit of 25 miles per hour on East Smith Road, had failed to negotiate an S curve and overturned the car into an embankment.
{¶ 22} Sanderbeck filed this wrongful-death action individually and as administrator of his daughter‘s estate against the county appellants, asserting that they had negligently, recklessly, and willfully and wantonly failed to perform the necessary care, supervision, and control in the maintenance and repair of East Smith Road, proximately causing his daughter‘s death.
{¶ 23} The county appellants filed a motion for summary judgment, arguing that they were entitled to statutory immunity under
{¶ 24} The Ninth District Court of Appeals affirmed the judgment in part and reversed it in part. The court of appeals held first that Sanderbeck‘s expert‘s affidavit and deposition testimony that East Smith Road was in disrepair at the time of the accident constituted evidence sufficient to prevent summary judgment in the county appellants’ favor. 2010-Ohio-3659, 2010 WL 3075598, at ¶ 12. The appellate court also held, however, that Sanderbeck failed to show a duty on the part of the county and board to erect a guardrail, because the drainage ditch running parallel to East Smith Road and under a driveway was not a “culvert” within the meaning of
{¶ 25} We accepted the first proposition of law presented by the county appellants on their discretionary appeal: “Under
II. Analysis
A. Political-Subdivision Tort Immunity under R.C. Chapter 2744
{¶ 26} The Political-Subdivision Tort Liability Act,
{¶ 27} “Political subdivision” means “a municipal corporation, township, county, school district, or other body corporate and politic responsible for governmental activities in a geographic area smaller than that of the state.”
{¶ 28} But there are several exceptions to the general grant of sovereign immunity, as listed by
B. Scope of R.C. 2744.02(B) .
{¶ 29} For their part, the county appellants argue that “in repair” as used in
{¶ 30} To prevail in their motion for summary judgment, the county appellants must show that there is no genuine issue of material fact in this case. Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, 662 N.E.2d 264. Sanderbeck cannot avoid summary judgment merely by showing that some facts are in dispute. In this case,
{¶ 31} I agree with the county appellants that the phrase “in repair” refers to a public subdivision‘s duty to maintain a road‘s condition after construction or reconstruction. In a case decided before
C. Insufficient evidence of “failure to keep public roads in repair”
{¶ 32} Sanderbeck failed to submit evidence sufficient to create a genuine issue of material fact on this crucial point.
{¶ 33} Sanderbeck relied on the expert opinion of Richard L. Stanford II, who gave an opinion that at the time of the crash, “East Smith Road was in disrepair
{¶ 34} In summary, the evidence Sanderbeck provided was that (1) the “skid number” of the roadway is a calculation that determines the deterioration of the pavement friction characteristics of the road or, in other words, how susceptible a roadway is to having cars slip off the roadway; (2) a skid number of 25 was calculated for the portion of East Smith Road where the accident occurred; (3) anything less than a skid number of 38 on a high-volume road would qualify as “disrepaired pavement“; (4) the “critical speed” for a curve in a roadway is the speed at which the tires of a turning vehicle will begin to slip, potentially causing a loss of control of the vehicle; (5) Stanford‘s opinion was that the critical speed of East Smith Road at the time of the accident was at or below the posted speed limit of 45 miles per hour; (6) East Smith Road was “in disrepair“;1 and (7) the condition of East Smith Road was a contributing factor in the accident that resulted in Michelle Sanderbeck‘s death.
{¶ 35} While appellee argues that Stanford‘s testimony creates a genuine issue of material fact, there was no evidence offered that established that the roadway on the date of the accident had deteriorated from an earlier standard due to the county appellants’ lack of maintenance.
{¶ 36} The difference between a road containing a design defect and a road that has fallen into disrepair is of critical importance in this case.
{¶ 37} Sanderbeck also relies upon photographs attached to the county appellants’ motion for summary judgment that depict the road the day after the accident occurred, asserting that they indicate spalling, i.e., physical deterioration of the pavement, and create a genuine issue of material fact on whether the road was in repair for purposes of
{¶ 38} Viewed as a whole and in a light most favorable to appellee, the testimony of Stanford relates only to a potential flaw in the road‘s design or construction rather than the failure to adequately maintain the road. Stanford stated his opinion that at the time of the accident, the road‘s skid number fell below accepted standards and that the critical speed of the road was below the posted speed limit. Each of these measurements, however, concerns the design or construction of the road. Because the county appellants are immune from liability for faulty design or construction, this evidence is not sufficient to defeat the county appellants’ motion for summary judgment.
{¶ 39} Under
III. Conclusion
{¶ 40} Because I conclude that appellee, Raymond J. Sanderbeck, failed to offer sufficient evidence to raise a genuine issue of material fact on the issue of the political-subdivision immunity of Medina County and the Medina County commissioners under
LUNDBERG STRATTON, J., concurs in the foregoing opinion.
Mannion & Gray Co., L.P.A., and Bradley J. Barmen, for appellee.
Mazanec, Raskin & Ryder Co., L.P.A., John T. McLandrich, and Frank H. Scialdone, for appellants.
Schottenstein, Zox & Dunn Co., L.P.A., Stephen L. Byron, and Stephen J. Smith; and John Gotherman, urging reversal for amicus curiae Ohio Municipal League.
Isaac, Brant, Ledman & Teetor, L.L.P., Mark Landes, and Derek L. Haggerty, urging reversal for amici curiae County Commissioners Association of Ohio, Ohio Township Association, Lorain County Township Association, County Engineers Association of Ohio, and Coalition of Large Ohio Urban Townships.
Davis & Young and Richard M. Garner, urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.