{¶ 1} Dayton Freight Lines, Inc. (“Dayton Freight”), Gainey Transportation Services, Inc. (“Gainey”), Richard D. Estes, Heidi L. Boyd, and Ronald and
{¶ 2} The events that gave rise to this lawsuit are as follows:
{¶ 3} On February 7, 2000, Lewisburg employees were burning discarded Christmas trees and other yard and lumber waste in an area behind the village’s water plant. The water plant was less than one-half mile north of Interstate 70. The burning was performed under a permit, which required that (1) only foliage and wood products be burned, (2) the wood be clean and dry, (3) burning piles be no larger than five feet by five feet, and (4) all fires be extinguished by 4:00 p.m. The burning occurred throughout the day, with additional wood fed into the fires by hand or backhoe.
{¶ 4} Midafternoon, a supervisor told the employee who had been primarily responsible for the burning to extinguish the fire. The employee did so by pushing all of the burning materials together with the backhoe and covering the pile with dirt and mud. No water was used. The village employees then left the water plant. Although the supervisor returned to the plant later that night, he did not check the burn site.
{¶ 5} Around 11:00 p.m., a multicollision accident occurred on eastbound Interstate 70, south of the water plant and outside the limits of Lewisburg. Twelve or more cars and tractor-trailers were involved in the accident, and numerous emergency departments from Lewisburg and elsewhere responded. Firefighters reported seeing behind the water plant large burn piles that produced smoke, which stayed low to the ground and traveled south toward the interstate. The drivers involved in the accident and some of those who responded to the scene described blackout-like conditions on the interstate caused by the smoke and fog.
{¶ 6} Numerous claims, third-party claims, counterclaims, and cross-claims related to the accident were filed in Preble and Montgomery Counties and in the United States District Court for the Southern District of Ohio. The Montgomery and Preble County cases were consolidated for purposes of discovery and for trial of liability issues.
{¶ 7} On April 21, 2004, Lewisburg filed a motion for summary judgment, asserting its immunity as a political subdivision. The appellants herein opposed the motion. On August 6, 2004, the trial court granted summary judgment to Lewisburg, concluding that the village was immune from liability under the version of R.C. Chapter 2744 in effect at the time of the accident. It also certified its decision under Civ.R. 54(B). The appellants raise numerous assignments of error on appeal.
{¶ 9} The Political Subdivision Tort Liability Act, codified at R.C. Chapter 2744, requires a three-tiered analysis to determine whether a political subdivision should be immune from liability. Pursuant to R.C. 2744.02(A)(1), the general rule is that political subdivisions are not liable in damages when performing either a governmental or a proprietary function.
Hubbard v. Canton City Bd. of Edn.,
{¶ 10} There is no dispute in this case that Lewisburg is a political subdivision or that it was engaged in a governmental function in setting the fire at the water plant to dispose of Christmas trees and other waste. There is also no dispute that the fire was located within Lewisburg and that the accident on Interstate 70 was not. Further, for the purposes of summary judgment, the parties seem to agree that there was a genuine issue of material fact as to whether the Lewisburg employees acted negligently in failing to extinguish the fire. The disputes in this case center on whether an exception to immunity applied pursuant to R.C. 2744.02(B) and, if such an exception applied, whether Lewisburg was nonetheless immune from liability because it had established one of the defenses set forth at R.C. 2744.03.
{¶ 11} The arguments raised by the appellants in their briefs overlap in some respects, but they are also distinct in some respects. We will use the assignments of error of Dayton Freight as a starting point and insert discussions of the additional arguments of the other appellants where appropriate. Dayton Freight’s first assignment of error is as follows:
The trial court erred in holding that the exception to political subdivision immunity set forth at O.R.C. § 2744.02(B)(3) does not apply to the village of Lewisburg where village employees created a nuisance on a public ground which subsequently obstructed visibility on nearby Interstate 70, resulting in injury, death and loss to person and property.
{¶ 12} The trial court concluded that “Lewisburg ha[d] no duty under R.C. 2744.02(B)(3) to repair or protect others from a nuisance that exist[ed] on an interstate highway regardless of where the source of the nuisance [was] located.” Dayton Freight contends that a political subdivision’s liability is determined by whether it had control over or created the nuisance, rather than by the location where the injury or harm occurred. It supports this argument by citing cases
{¶ 13} At the time of the accident, R.C. 2744.02(B)(3) 1 provided: “[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, * * * or public grounds within the political subdivision open, in repair, and free from nuisance * *
{¶ 14} The Supreme Court interpreted former R.C. 2744.02(B)(3) in conjunction with the former R.C. 723.01, a similar statute that required municipal corporations to keep public highways, streets, and avenues “open, in repair, and free from nuisance.”
Mfr’s Natl. Bank of Detroit v. Erie Cty. Rd. Comm.
(1992),
{¶ 15} Dayton Freight urges that a different standard must apply when the nuisance or hazard in question has been created by and is within the control of the political subdivision. The Supreme Court has not addressed this particular circumstance. The trial court relied on a case from the Twelfth Appellate District,
Kareth v. Toyota Motor Sales
(Sept. 28, 1998), Clermont App. No. CA98-01-011,
{¶ 16} Courts give words in a statute their plain and ordinary meaning unless legislative intent indicates a different meaning.
Hubbard v. Canton City Bd. of Edn.,
{¶ 17} Gainey also argues that, “as an occupier of abutting property, [Lewis-burg] breached its duty not to create nuisances affecting travel on the roadway through the use of its land.” It cites
Mfr’s Natl. Bank,
{¶ 18} Gainey contends that, on the authority of Mfr’s Natl. Bank, Lewisburg should be held liable not only as a political subdivision, but as a private landowner that created a hazard on an adjoining highway. Having concluded that Lewis-burg can be held liable pursuant to R.C. 2744.02(B)(3), we decline to address Gainey’s argument that Lewisburg should be held liable as a private landowner.
(¶ 19} Gainey also cites
Kettering ex rel. Moser v. Kettering
(Jan. 29, 1988), Montgomery App. No. 10596,
{¶ 20} The trial court distinguished
Moser
because we had distinguished its facts from the facts in
Mitchell,
where a city was found to be immune from liability for a nuisance that had existed within the city limits but had created a hazard outside of the city limits. However, the nuisance in
Mitchell
was not
{¶ 21} In sum, we find that the exception to political subdivision immunity set forth at R.C. 2744.02(B)(3) applies under the facts of this case. Dayton Freight’s first assignment of error and the other parties’ assignments related to R.C. 2744.02(B)(3) are sustained.
{¶ 22} Dayton Freight’s second assignment of error states:
The trial court erred in holding that the exception to political subdivision immunity set forth at O.R.C. § 2744.02(B)(4) does not apply to the village of Lewisburg where village employees negligently attempted to extinguish a fire within or on the grounds of buildings used in connection with the performance of a governmental function when said negligence resulted in a cloud of smoke and fog which obstructed visibility on nearby Interstate 70, resulting in injury, death or loss to persons or property.
{¶ 23} Dayton Freight argues that Lewisburg is liable pursuant to R.C. 2744.02(B)(4), which provides, “[Pjolitical subdivisions are liable for injury, death, or loss to persons or property that is caused by the negligence of their employees and that occurs within or on the grounds of buildings that are used in connection with the performance of a governmental function * * Dayton Freight claims that the trial court erred in concluding that R.C. 2744.02(B)(4) imposes liability only for injuries that occur on public grounds.
{¶ 24} As stated supra, courts give words in a statute their plain and ordinary meaning unless legislative intent indicates a different meaning.
Hubbard v. Canton City Bd. of Edn.,
{¶ 25} Dayton Freight would have us read R.C. 2744.02(B)(4) as being satisfied if the negligence, rather than the injury, occurred on the public grounds. We simply do not believe that the provision can be interpreted in this manner. Both
{¶ 26} Moreover, based on the rules of statutory construction, the Supreme Court has refused to recast R.C. 2744.02(B)(4) so that the subsection may accommodate some unstated meaning or purpose. Hubbard at ¶ 14. In Hubbard, the political subdivision asked the court to read R.C. 2744.02(B)(4) more narrowly, i.e., as applying only to injuries occurring on the public grounds that were due to physical defects within or on those grounds. This argument was based on subsequent legislation that evinced an intent to so limit the provision but which had been held unconstitutional on other grounds. While acknowledging that the General Assembly had attempted to change the language of R.C. 2744.02(B)(4), the court refused to judicially rewrite the subsection, concluding that it was “bound to apply the words of the law in effect at the time the alleged negligent acts occurred.” Id. at ¶ 17. For the same reason, we must interpret R.C. 2744.02(B)(4) as requiring the injury, death, or loss to occur within or on public grounds. Although a policy argument could be made that R.C. 2744.02(B)(4) should not be written so narrowly, such an argument must be addressed to the legislature.
{¶ 27} Dayton Freight relies on two cases in support of its argument.
Beck v. Adam Wholesalers of Toledo, Inc.
(Sept. 28, 2001), Sandusky App. No. S-00-038,
{¶ 28} “Under the specific facts of this case, particularly focusing on the continuous chain of events which culminated in the accident, we reject such a narrow interpretation of the statute. We agree with [plaintiff-]appellant that the foreseeability and proximity aspects of this particular case cannot be ignored. Denying review under R.C. 2744.02(B)(4) based upon a matter of inches leads to an absurd result.” Id.
{¶ 29} While we do not necessarily disagree with the reasoning in Beck, we decline to follow that case here. The injury, death, and loss that occurred on Interstate 70 in this case was not nearly as foreseeable and proximate to the alleged nuisance as in Beck. Moreover, while Beck bends the statutory rule that the injury must occur on governmental property, it does so by “inches.” It does not hold that, in general, the injuries contemplated by R.C. 2744.02(B)(4) need not occur on governmental property.
{¶ 31} “Since the injuries claimed by plaintiffs were caused by negligence occurring on the grounds of a building used in connection with a governmental function, R.C. 2744.02(B)(4) applies and the board is not immune from liability.”
Hubbard v. Canton City Bd. of Edn.,
{¶ 32} We have previously rejected Dayton Freight’s proposed interpretation of this passage from
Hubbard.
In
Kennerly v. Montgomery Cty. Bd. of Cmmrs.,
{¶ 33} “Standing alone, that passage might be read to indicate that the statutory exception to immunity turns on where the negligent act occurs. * * * We do not read Hubbard to hold that application of R.C. 2744.02(B)(4) turns on where the negligent act occurred. * * * [RJegardless of where the negligent act takes place, neither Hubbard nor a plain-meaning construction of R.C. 2744.02(B)(4) permits its application to an injury, death, or loss that occurs anywhere other than within or on the grounds of a building where a governmental function from which the harm proximately resulted is performed.” Id. at ¶ 18-19.
{¶ 34} Dayton Freight’s second assignment of error and the other assignments related to R.C. 2744.02(B)(4) are overruled.
{¶ 35} The briefs of Gainey and the Tracys raise one additional issue, which we will treat as a third assignment of error. It is stated in Gainey’s brief as follows:
The ‘discretionary defenses’ set forth in Ohio Rev.Code § 2744.03(A)(3) and (5) do not provide immunity where the act of the political subdivision constitutes a nuisance under Ohio Rev.Code § 2744.02(B)(3) and where the facts suggest willfulness and wantonness if any discretion was exercised.
{¶ 36} The trial court noted that R.C. 2744.03 lists defenses to political-subdivision liability that may apply even if an exception to immunity has been established under R.C. 2744.02. However, the court did not address R.C. 2744.03 because it found that none of the exceptions to immunity under R.C. 2744.02 had been established. Insofar as we have found that the exception set forth at R.C. 2744.02(B)(3) does apply, we will remand this matter for the trial court to consider the applicability of any defenses set forth under R.C. 2744.03.
{¶ 37} The third assignment of error is overruled.
Judgment affirmed in part and reversed in part, and cause remanded.
Notes
. The trial court accurately discussed the history of R.C. Chapter 2744 as follows: "Under Ohio Senate Bill No. 106 amending R.C. 2744.02 and 2744.03, any cause of action prior to the effective date of the bill in 2003 is governed by the law in effect when the cause of action accrued. Prior to the February 7, 2000, motor vehicle accident, the two most recent versions of R.C. 2744.02 and R.C. 2744.03 were enacted in House Bill 350, effective January 27, 1997, and House Bill 215, effective June 30, 1997. However, these two versions of the statute were invalidated by the Ohio Supreme Court’s decision in
State ex rel. Ohio Academy of Trial Lawyers v. Sheward
(1999),