759 N.E.2d 1266 | Ohio Ct. App. | 2000
The painted lane line, which separates the left turn only lane and the through/left turn option lane on Gulf Road, is extended through the intersection and connects the northbound left turn lanes to the westbound lanes of Rte. 57. This dual left turn lane extension line was installed to guide motorists through the intersection. The extension line is a dashed white semi-circular line, painted on the roadway using a mixture of white paint and glass beads. The glass beads reflect the light from the headlights of the vehicles making a left turn, and thus, increase the visibility of the extension line at night. Traffic traveling through the intersection routinely causes the glass beads to deteriorate and lose their reflectivity. Elyria routinely repaints this line twice per year, in the spring and fall, unless the weather is extremely poor. To get the best results when reapplying the paint, certain weather conditions must be present, such as low humidity and warm temperatures. This line was last repainted in August 1995, approximately six to seven months prior to the accident.
West of the intersection, a "Keep Right" sign is mounted in the median of Rte. 57, facing the westbound traffic of Rte. 57. The intersection is also fully lit by streetlights at night.
On March 22, 1996, at approximately 10:00 p.m., Patty Ellis was driving northbound on Gulf Road. As she approached the intersection of Gulf Road and Rte. 57, Ms. Ellis pulled into the left turn only lane and stopped at the red light. When the light turned green, Ms. Ellis turned left to enter the westbound lanes of *238 Rte. 57, but instead, cut her turn short and entered into the eastbound lanes of Rte. 57. At the time, Ms. Ellis was highly intoxicated, having a BAC of 0.16. Ms. Ellis traveled for approximately four-tenths of a mile on eastbound Rte. 57 before colliding head-on with Ms. Ritsko. Both Ms. Ellis and Ms. Ritsko died as a result of the accident. At the time of the accident, Ms. Ritsko was a senior in high school.
On June 7, 1996, the Estate filed an action against the Estate of Patty Joanne Ellis ("Ms. Ellis") and S.P.Y. Enterprises, Inc., d.b.a. The Warehouse, Ltd., in the Lorain County Court of Common Pleas for the wrongful death of Tammy Ritsko and the resulting emotional distress suffered by her mother, Ms. Taddeo. On January 21, 1997, the Estate filed an additional complaint against the City of Elyria, claiming that Tammy Ritsko's death was proximately caused by Elyria's failure to keep the roadway open, in repair, and free from nuisance.1 The complaint also alleged that as a result of Ms. Ritsko's death, her mother, Ms. Taddeo, suffered severe emotional distress. These two cases were consolidated on March 6, 1997.
On April 21, 1999, Elyria filed its second motion for summary judgment, arguing that the Estate's claims were barred by governmental immunity, as the design and condition of the intersection were the result of discretionary decisions. In the alternative, Elyria contended that if immunity did not apply to bar the Estate's claims, Ms. Ellis' conduct broke the chain of proximate causation, and therefore, Elyria is not liable as a matter of law. In support of its motion, Elyria supplied the trial court with the affidavits of Craig Sampson and Charles Fair, the report of Jackman Consultants produced by the Estate, and the accident investigation report of the Elyria Police Department. On May 14, 1999, the Estate responded in opposition and moved to strike certain evidentiary material presented by Elyria, namely certain paragraphs of the affidavit of Mr. Sampson and certain pages2 of the accident investigation report of the Elyria Police Department. The Estate objected to the Sampson affidavit because Elyria did not timely identify Mr. Sampson as an expert or submit an expert report as required by Loc.R. 14.1, and the affidavit did not disclose adequate qualifications to support his opinions. See Evid.R. 702. The Estate also urged that select portions of the police report be stricken as these portions contain inadmissible hearsay. On *239 August 10, 1999, the trial court denied the Estate's motion to strike evidentiary material and granted summary judgment in favor of Elyria, finding that the "defective design or construction or lack of signage does not constitute a nuisance as a matter of law." The trial court further concluded that the faded dual left turn lane extension line does not render the regularly traveled portions of the highway unsafe for the ordinary course of travel, and therefore, does not constitute a nuisance as a matter of law. Even though judgment had been rendered to less than all of the parties in the suit, the trial court found that there was no just reason for delay. See Civ.R. 54(B). This appeal followed.
The trial court erred to the substantial prejudice of Plaintiffs by granting Defendant Elyria's Second Motion for Summary Judgment.
The Estate avers that the trial court erred in granting summary judgment in favor of Elyria. We disagree.
The Ohio Supreme Court has stated that legislative enactments are to be afforded a strong presumption of constitutionality.State v. McDonald (1987),
Section
All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. Suits may be brought against the state, in such courts and in such manner, as may be provided by law.
(Emphasis added.) *240
To support its position, the Estate cites the Supreme Court's recent holding in State ex rel. Ohio Academy of Trial Lawyers v.Sheward (1999),
Apparently, the Estate argues that the General Assembly impermissibly usurped judicial power by enacting R.C. Chapter 2744, after the Supreme Court had abrogated the common law doctrine of sovereign immunity of political subdivisions for acts of negligence in Haverlack v. Portage Homes, Inc. (1982),
In addition, the Supreme Court in Fahnbulleh v. Strahan
(1995),
It may well be argued that any grant of immunity necessarily impairs some individual's right to seek redress in a court of law, and thus treats some persons harshly. All too frequently, decisionmaking requires difficult balancing of *241 competing interests and equities. The Ohio Constitution specifies that suits may be brought against the state "as provided by law." This language can only mean that the legislature may enact statutes to limit suits if it does so in a rational manner calculated to advance a legitimate state interest.
(Emphasis added.) Fahnbulleh,
In light of the fact that the Supreme Court has held the legislature may enact statutes to limit suits against a political subdivision and that R.C.
Pursuant to Civ.R. 56(C), summary judgment is proper if:
Temple v. Wean United, Inc. (1977),(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
In order to determine whether the trial court erred in granting summary judgment, we must first decide whether Elyria, a political subdivision, can be held liable under R.C.
Harp v. Cleveland Hts. (2000),R.C.
2744.02 (A)(1) provides that a political subdivision is generally not liable for injury, death, or loss to persons or property incurred in connection with the performance of a governmental or proprietary function.
Under R.C.
2744.01 (C)(2)(e), the term "governmental function" includes "[t]he regulation of the use of, and the maintenance and repair of, roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, and public grounds[.]"
R.C.
(Alterations original.) Harp,
Even if it is determined that a condition may constitute a nuisance, R.C. Chapter 2744 enumerates defenses which the political subdivision can assert to establish nonliability. Elyria raises the defenses set forth in R.C.
R.C.
2744.03 (A)(3) provides immunity to a political subdivision where the act or failure to act by an employee was within the discretion of the employee as to "policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee." R.C.2744.03 (A)(5) provides that a political subdivision is "immune from liability if the injury [or] death * * * resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources, unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner."
(Alterations original.) Franks v. Lopez (1994),
In the present case, we find that Elyria cannot be held liable for failing to erect adequate signaling and warning devices, specifically for failing to erect additional warning signs or install an additional center lane line extension to guide left-turning traffic, as these claims are barred by R.C.
Similarly, we conclude that the trial court correctly determined that the alleged improper placement of the "Keep Right" sign does not constitute a nuisance under R.C.
Lastly, the Estate asserts that the trial court erred in finding that the allegedly faded dual left turn lane extension line does not constitute a nuisance as a matter of law. We disagree. As noted above, in determining a political subdivision's liability under R.C.
The trial court erred to the substantial prejudice of Plaintiffs by denying Plaintiffs' Motion to Strike Elyria's Evidentiary Material.
We need not reach the merits of this claim, as it is rendered moot by our disposition of the above assignment of error. This is so because the challenged evidence was not relevant to the trial court's grant or denial of summary judgment or to our review of the trial court's decision. See App.R. 12(A)(1)(c).
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E).
Costs taxed to Appellants.
Exceptions.
___________________________ WILLIAM G. BATCHELDER
FOR THE COURT, SLABY, J., QUILLIN, J., CONCUR
(Quillin, J., retired Judge of the Ninth District Court of Appeals, sitting by assignment pursuant to Section 6 (C), Article IV, Constitution.)