SICKLES, еt al., Appellees, v. JACKSON COUNTY HIGHWAY DEPARTMENT et al., Appellants.
No. 11CA7
Court of Appeals of Ohio, Fourth District, Jackson County.
Decided Nov. 17, 2011.
[Cite as Sickles v. Jackson Cty. Hwy. Dept., 196 Ohio App.3d 703, 2011-Ohio-6102.]
Judgment affirmed as modified.
BLACKMON, P.J., and CELEBREZZE, J., concur.
Lambert Law Office and Randall Lambert, for appellants.
HARSHA, Presiding Judge.
{¶ 1} The Sickles family filed suit against Jackson County and Thomas Keaton, alleging that Keaton, a county employee, had negligently and recklessly operated a salt truck, causing them personal and derivative injuries. The defendants now appeal the trial court‘s denial of their motion for summary judgment.
{¶ 3} Next, appellants argue that the trial court erred when it denied the engineer and the commissioners immunity from the Sickleses’ claims of respondeat superior liability for Keaton‘s alleged negligent operation of the salt truck. The parties agree that the engineer‘s and the commissioners’ offices qualify for the general grant of immunity under the Political Subdivision Tort Liability Act. However, they disagree about whether statutory exceptions to immunity potentially expose appellants to liability. Appellants implicitly acknowledge that the Sickleses’ аllegations implicate the exception for negligent operation of a motor vehicle but argue that their claims are barred for various reasons.
{¶ 4} First, appellants contend that the Sickleses failed to present summary-judgment evidence demonstrating that Keaton drove in a negligent manner. Specifically, they argue that Keaton did not breach a common-law duty of care and that the accident was not foreseeable. Because genuine issues of material fact exist as to these issues, the trial сourt properly denied summary judgment.
{¶ 5} Second, appellants argue that Shannon‘s contributory negligence bars recovery in this case. However, the trial court‘s rejection of this argument did not deny the engineer or the commissioners the benefit of an alleged immunity from suit. A plaintiff‘s contributory negligence does not reinstate a political subdivision‘s immunity; it merely acts as an affirmative defense to the negligence claims against a defendant. Therefore, the general rule that a denial of summary judgment is a not a final, appealable order applies to this issue. And without a final order, we lack jurisdiction to consider this argument and dismiss this portion of the appeal.
{¶ 6} Third, appellants argue that even if genuine issues of material fact exist concerning the issues of negligence and comparative negligence, the engineer and the commissioners have a full defense to liability under
{¶ 7} Finally, Keatоn contends that he is entitled to immunity from suit based on the additional statutory immunity provided to employees of a political subdivi-
I. Facts
{¶ 8} In their complaint, the Sickleses alleged that they were involved in an accident when Robert Johnson drove into their vehicle and forced it down an embankment. After the Sickleses exited their vehicle, Ronald Sickles went to get help while Shannon Sicklеs and Ryan Sickles waited by Johnson‘s vehicle. Soon, Keaton approached the scene driving a salt truck. According to the Sickleses, “[a]t least two people flagged Mr. Keaton to stop his truck given the hazard in front of him.” Keaton “slowed his truck almost to a stop at the top of a hill where he could see the crash scene” but “carelessly decided to proceed ahead.” The Sickleses alleged that Keaton failed to control his vehicle, crossed onto the left side of the roadway, and struck Shаnnon and Ryan. The Sickleses brought claims against Keaton for negligence per se, negligent and reckless conduct in his operation of the salt truck, negligent infliction of emotional distress, and Ronald‘s loss of Shannon‘s consortium. The Sickleses also alleged that Keaton was an employee or agent of the Jackson County Highway Department, the Jackson County engineer, and the Jackson County commissioners. The Sickleses claimed that those defendants were liable for Keaton‘s conduct under the doctrine of resрondeat superior.
{¶ 9} The defendants filed a motion for summary judgment, raising various arguments. The trial court denied the motion, simply stating that “there are genuine issues of material fact and * * * Defendants’ motion is not well taken.” This appeal followed.
II. Assignments of Error
{¶ 10} Appellants assign the following errors for our review:1
The Jackson County Highway Department is not a proper party to this suit because it is not a political subdivision capable of being sued.
{¶ 11} When reviewing a trial court‘s decision on a motion for summary judgment, we conduct a de novo review governed by the standard set forth in
{¶ 12} The burden of showing that no genuine issue of material fact exists falls upon the party who moves for summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, 662 N.E.2d 264. To meet its burden, the moving party must specifically refer to “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,” that affirmatively demonstrate that the nonmoving party has no evidence to support the nonmoving party‘s claims.
IV. Jurisdiction
{¶ 13} Appellate courts “have such jurisdiction as mаy be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district.”
V. Analysis
A. Jackson County Highway Department
{¶ 15} In their first assignment of error, appellants contend that the Jackson County Highway Department “is not a political subdivision and is not a proper party because such department does not have the capacity to sue or bе sued. Accordingly, Jackson County Highway Department should have been dismissed from this action.” As the Sickleses correctly point out, the trial court‘s rejection of this argument did not deny the Highway Department the benefit of an alleged immunity from liability. Rather, it simply rejected the contention that the Jackson County Highway Department lacks the capacity to be sued. Regardless of the propriety of this decision, it does not address statutory immunity, i.e., capacity to be sued and statutory immunity are distinct legal concepts. Capacity refers to a legal qualification that determines one‘s ability to sue or be sued. Immunity is an exception from liability, i.e., a defense, that a party with capacity to be sued can raise. See Black‘s Law Dictionary (7th Ed. 1999) 199, 752.
{¶ 16} Absent an exception to the general rule that a denial of summary judgment is a not a final, appealable order, we cannot address the appellants’ argument. See Essman I, 2009-Ohio-3367, 2009 WL 1943672, at ¶ 10, 12 (appellate court had jurisdiction to consider an order denying summary judgment to the extent that the trial court denied
{¶ 17} In their second assignment of error, appellants argue in part that the trial erred when it denied the Jackson County commissioners and Jackson County engineer the benefit of immunity from liability under
{¶ 18}
{¶ 19} Determining whether a political subdivision is immune from liability under
{¶ 20} The Sickleses do not dispute appellants’ contention that claims against the Jackson County commissioners and Jackson County engineer gеnerally qualify for the broad grant of immunity under
(B) Subject to sections
2744.03 and2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:(1) Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority. The following are full defenses to that liability:
* * *
(c) A member of an emergency medical servicе owned or operated by a political subdivision was operating a motor vehicle while responding to or completing a call for emergency medical care or treatment, the member was holding a valid commercial driver‘s license issued pursuant to
Chapter 4506. or a driver‘s license issued pursuant toChapter 4507. of the Revised Code, the operation of the vehicle did not constitute willful or wanton misconduct, and the operation complies with the precautions of section4511.03 of the Revised Code.
{¶ 21} Appellants implicitly acknowledge that the Sickleses’ respondeat superiоr liability claims implicate
{¶ 22} The Sickleses admit that to ultimately prevail on their claims, they must establish all of the elements of a negligence action, i.e., “‘the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom.‘” Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142, 539 N.E.2d 614, quoting Menifee v. Ohio Welding Prods., Inc. (1984), 15 Ohio St.3d 75, 77, 472 N.E.2d 707. However, they contend that appellants’ arguments go to their burden of proof on the underlying merits of the negligence claims, not the threshold question of whether immunity bars the claims. So they assert that we lack jurisdiction to considеr the trial court‘s rejection of those arguments at this time. However, “[w]hen a trial court denies a motion in which a political subdivision or its employee seeks immunity under
{¶ 23} Appellants contend that Keaton was not negligent, because he did not breach a common-law duty of care owed to the Sickleses. Even if we were to assume that the court erred when it rejected this argument, that error would nоt automatically require the court to grant summary judgment to the commissioners and the engineer. In their complaint, the Sickleses alleged that Keaton violated both a common-law duty of care and committed negligence per se. “In Ohio, it is a well settled principle of law that violation of a specific safety statute, absent a showing of some legal excuse for failure to comply with the conduct required by the statute, constitutes negligence per se.” Zehe v. Falkner (1971), 26 Ohio St.2d 258, 261-262, 271 N.E.2d 276. “The concept of negligence per se allows thе plaintiff to prove the first two prongs of the negligence test, duty and breach of duty, by merely showing that the defendant committed or omitted a specific act prohibited or required by statute; no other facts are relevant.” Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, at ¶ 15. In their motion for summary judgment and on appeal, appellants did not challenge the Sickleses’ claims of negligence per se. Thus even if Keaton did not breach a common-law duty of care, the claims of negligence per se remain pending and might preclude immunity. In other words, the Sickleses might establish duty and breach through an alternative method. Nonetheless, we still address the merits of appellants’ common-law argument.
{¶ 24} Appellants contend that Keaton did not breach a common-law duty of care. Whether the defendant had a duty is a question of law for the court. Mussivand v. David (1989), 45 Ohio St.3d 314, 318, 544 N.E.2d 265. However, once a plaintiff establishes that the defendant had a duty, whether the defendant breached that duty is generally a question of fact for the jury. See Commerce & Industry Ins. Co. v. Toledo (1989), 45 Ohio St.3d 96, 98, 543 N.E.2d 1188. “Negligence in motor vehicle cases, as in negligence cases generally, is the failure to exercise ordinary care so as to avoid injury to others. Ordinary care is that degree of care which persons of ordinary care and prudence are accustomed to observe under the same or similar circumstances, and the degree of care required of a motorist is always controlled by and depends upon the place, circumstances, conditions, and surroundings.” McDonald v. Lanius (Oct. 28, 1993), Marion App. No. 9-93-23, 1993 WL 451201, at *2, quoting 7 Ohio Jurisprudence 3d (1978) 483-484, Automobiles and Other Vehicles, Section 312.
{¶ 25} Appellants appear to acknowledge that Keaton had a duty to exercise ordinary care, but they contend that Keaton did not breach that duty, because he took all necessary precautions and followed the standards he was taught for
{¶ 26} Nonetheless, in their complaint, the Sickleses alleged that Keaton “slowed his truck almost to a stop at the top of a hill where he could see the crash scene. However, rather than pull оff to the side due to the road conditions ahead and the disabled vehicles involved in the crash, defendant Keaton carelessly decided to proceed ahead.” In their answer, appellants “acknowledge[d] that Keaton did slow down at the top of the hill and view the area and then did proceed to perform his job of placing salt on the roadway.” In an affidavit, Shannon also averred: “Mr. Keaton slowed his truck almost to a stop at the top of a hill where he could see the crash scene. Mr. Keatоn, however, did not pull off to the side of the road.” Therefore, a question of fact exists concerning whether Keaton knew about a problem on the roadway sooner than he testified, and thus whether he exercised ordinary care when he proceeded given the icy conditions or should have pulled over as the Sickleses contend.
{¶ 27} Appellants also contend that Keaton did not act negligently, because the accident was not foreseeable to him. “[T]he concept of foreseeability is intertwined not only with duty, but also with proximate cause.” Oiler v. Willke (1994), 95 Ohio App.3d 404, 410, 642 N.E.2d 667. However, foreseeability “is but a manner of addressing the limits of an actor‘s legal responsibility, regardless of whether the analysis is conducted under the element of duty or proximate cause.” Id. at 411. Therefore, it is more important to recognize the policy nature of this limitation on liability rather than to emphasize the particular element giving it effect. See id.
{¶ 29} Appellants contend that the accident could not be foreseeable, because Keaton “had no forewarning that a crash had occurred further down the road.” But we have already concluded that a question of fact exists concerning when Keaton knew about a problem on the roadway. Thus a question of fact exists about whether Keaton could have foreseen an accident if he continued to drive on an icy roadway that already contained one crash scene. And because genuine issues of material fact exist as to whether Keaton acted negligently, the trial court did not err when it determined that genuine issues of material fact exist about whether
{¶ 30} Appellants contend that even if Keaton acted negligently, the contributory negligence of Shannon bars the Sickleses’ recovery as a matter of law. However, the trial court‘s rejection of this argument did not deny the engineer or the commissioners the benefit of an alleged immunity from liability. If a political subdivision is exposed to liability under
{¶ 31} Next, appellants argue that even if
C. Keaton
{¶ 32} Also, in the second assignment of error, Keaton contends that he is entitled to individual immunity under
(A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:
* * *
(6) In addition to any immunity or defense referrеd to in division (A)(7) of this section and in circumstances not covered by that division or sections
3314.07 and3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies:(a) The employee‘s acts or omissions were manifestly outside the scope of the employee‘s employment or official responsibilities;
(b) The employee‘s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a section of the Revised Code.
{¶ 33} On appeal, Keaton recognizes that
{¶ 34} We lack jurisdiction to consider appellants’ first assignment of error and therefore dismiss it. In addition, we lack jurisdiction to consider appellants’ second assignment of error to the extent that it raises the issue of contributory negligence and dismiss that portion of the appeal. In all other regards, we overrule appellants’ second assignment of error and affirm the trial court‘s judgment.
Judgment affirmed in part, and appeal dismissed in part.
ABELE and MCFARLAND, JJ., concur.
CRENSHAW, Appellee, v. ROWLAND, Appellant; et al.
[Cite as Crenshaw v. Rowland, 196 Ohio App.3d 717, 2011-Ohio-5942.]
Court of Appeals of Ohio, Sixth District, Lucas County.
No. L-10-1152.
Decided Nov. 18, 2011.