Yonkings v. PiwinskiYonkings v. Piwinski
Rendered on December 6, 2011
Jefferies, Kube, Forrest & Monteleone Co., L.P.A., David A. Forrest and Jarrett J. Northup; Riley, Resar & Associates, and Patrick Riley, for Dolores Yonkings.
Mazanec, Raskin & Ryder Co., L.P.A., John T. McLandrich, Todd M. Raskin, and Frank H. Scialdone, for Donald A. Piwinski.
Baker, Dublikar, Beck, Wiley & Mathews, Anthony E. Brown, and Andrеa K. Ziarko, for Grafton Township and Frank Raksi.
APPEALS from the Court of Claims of Ohio.
BROWN, J.
{¶1} Defendants-appellants, Donald A. Piwinski, Grafton Township (“Grafton“), and Frank J. Raksi, appeal from a judgment of the Ohio Court of Claims denying their motions for summary judgment on the wrongful death and survivorship claims asserted by plaintiff-appellee, Dolores Yonkings, administrator of the estate of Charles A. Yonkings.
{¶2} This action arises out of a fatal motor vehicle accident on July 2, 2007. The accident occurred in Grafton Township, Lorain County, at the intersection of State Route 57 (“S.R. 57“), a through highway that runs North and South, and Law Road (“Law“), a township road that runs East and West. At 12:10 p.m., a dispatcher at the Lorain County Sheriff‘s Office received a 911 call that the stop sign regulating eastbound traffic on Law approaching the intersection with S.R. 57 was down. There is no dispute that the stop
{¶3} At 12:21 p.m., the sheriff‘s dispatcher called the Lorain County Maintenance Garage. Piwinski, the Lorain County Assistant Highway Superintendent, answered the call and was informed of the problem. Piwinski told the dispatcher that ODOT was responsible for the stop sign, and volunteered to report the problem to the ODOT garage in Lorain County. Piwinski testified that he immediately called ODOT, reported the downed stop sign to an unidentified man who answered the call and told him the situation “needs to be taken care of.” (Piwinski Depo. at 30.) Piwinski averred that the man with whom he spoke assured him that he “would take care of it.” (Piwinski Depo. at 34.) Several ODOT employees employed at the Lorain County ODOT garage testified that Piwinski never reported the downed stop sign. No ODOT employee repaired or replaced the downed stop sign.
{¶4} Around the same time, Frank Raksi and Bob Richards, co-superintendents and the only two employees of Grafton‘s Road Department, were replacing a ditch pipe near the intersection of Law and Chamberlain Road, and had driven a dump truck and a backhoe to the work site. At approximately 12:50 p.m., a Grafton township trustee, Michael Podulka, received a report of a downed stop sign at the intersection of Law and Chamberlain Road. Podulka immediately called Raksi and asked him to investigate the situation. Raksi observed that both stop signs were intact, reported his findings to Podulka, and told him the report of the downed stop sign must have been a joke. Raksi and Richards thereafter resumed working on the ditch pipe.
{¶5} Later that afternoon, at aрproximately 2:29 p.m., another Grafton township trustee, Thomas Giese, received a report of a downed stop sign at the intersection of Law
{¶6} At approximately 3:45 p.m., Charles Yonkings was traveling eastbound on Law at the intersection of S.R. 57. Because the stop sign on eastbound Law was down, Yonkings entered the intersection without stopping. Yonkings’ vehicle was struck by a tractor-trailеr traveling northbound on S.R. 57. Yonkings sustained fatal injuries in the collision.
{¶7} On June 17, 2009, plaintiff filed a complaint against defendants in the Lorain County Court of Common Pleas. Plaintiff asserted wrongful death and survivorship claims against Grafton premised upon its alleged negligent, reckless and/or wanton failure to timely repair or replace the downed stop sign or to otherwise warn motorists of the hazardous intersection. Plaintiff asserted wrongful death and survivorship claims against Raksi arising from his alleged wanton and/or reckless failure to repair or replace the downed stop sign in contravention of Giese‘s instructions to do so. Agаinst Piwinski, plaintiff asserted wrongful death and survivorship claims stemming from his alleged wanton and/or reckless failure to notify ODOT of the downed stop sign.
{¶9} On October 12, 2010, Piwinksi filed a motion for summary judgment. Piwinski argued that Lorain County owed no duty with respect to the downed stoр sign as it was situated at the intersection of a state highway and a township road – not a county road – and, as such, he was insulated from liability even in the face of allegations of wanton and reckless conduct, as his actions were taken solely in his official capacity as an employee of Lorain County. Alternatively, Piwinski argued that he was immune from liability pursuant to
{¶10} Grafton and Raksi filed a joint motion for summary judgment on October 12, 2010, arguing that neither owed any legal duty to repair or replace the downed stop sign as it was owned, installed, maintained, and repaired by ODOT. Grafton and Raksi argued, alternatively, thаt both were immune from liability under
{¶11} Following an oral hearing on November 12, 2010, the Court of Claims, by decision and entry filed December 3, 2010, denied both motions for summary judgment. The court determined that Grafton “owed a duty of care to the traveling public with respect to the downed sign [and] that an issue of fact exists whether Grafton violated the standard of care by failing to replace the downed sign within a reasonable time after
{¶12} Grafton and Raksi assign the following three errors:
- THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANTS’ MOTION FOR SUMMARY JUDGMENT WHEN APPELLANT TOWNSHIP DID NOT OWE APPELLEE‘S DECEDENT A DUTY TO REPLACE THE STOP SIGN AT THE TIME OF THE ACCIDENT[.]
- THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANTS’ MOTION FOR SUMMARY JUDGMENT[.] APPELLANTS ARE ENTITLED TO IMMUNITY AS APPELLANT RAKSI WAS INVOLVED IN AN EXERCISE OF DISCRETION AT THE TIME OF HIS ACCIDENT[.]
- THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT RAKSI IMMUNITY FROM APPELLEE‘S CLAIMS AS RAKSI‘S ACTIONS WERE NOT WITH MALICIOUS PURPOSE, IN BAD FAITH, OR IN A WANTON OR RECKLESS MANNER[.]
{¶13} Piwinski advances the following three errors:
- [I.] THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLANT DONALD A. PIWINSKI, PURSUANT TO
O.R.C. §2744.02(A)(1) , AFTER HAVING PROPERLY CONCLUDED THAT PLAINTIFF-APPELLEE SOLELY SUED HIM IN HIS OFFICIAL CAPACITY.
[II.] THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLANT DONALD A. PIWINSKI WHEN IT WAS UNDI[SP]UTED THAT HE DID NOT OWE A DUTY TO PLAINTIFF-APPELLEE‘S DECEDENT AND DID NOT VOLUNTARILY ASSUME A DUTY TO PLAINTIFF-APPELLEE‘S DECEDENT. - [III.] THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO GRANT DEFENDANT-APPELLANT DONALD A. PIWINSKI IMMUNITY AS THERE WAS NO EVIDENCE ESTABLISHING THAT ON JULY 2, 2007, HE ACTED IN A RECKLESS OR WANTON MANNER.
{¶14} While a trial court‘s denial of a motion for summary judgment is generally not a final, appealable order, “[w]hen a trial court denies a motion in which a political subdivision or its employee seeks immunity under
{¶15} An appellate court reviews a summary judgment disposition de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, citing Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711. Accordingly, we conduct an independent review of the record and stand in the shoes of the trial court. Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107.
{¶17} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record which affirmatively demonstrate the absence of a genuine issue of fact on a material element of the non-moving party‘s claim. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. Once the moving party meets its initial burden, the non-moving party must set forth specific facts demonstrating a genuine issue for trial. Id.
{¶18} In its first and second assignments of error, Grafton contends that the Court of Claims erroneously denied its motion for summary judgment as to its entitlement to political subdivision immunity. Whether a political subdivision is immune from civil liability is purely a question of law, properly determined prior to trial and preferably on a motion for summary judgment. Conley v. Shearer, 64 Ohio St.3d 284, 292, 1992-Ohio-133, citing Roe v. Hamilton Cty. Dept. of Human Servs. (1988), 53 Ohio App.3d 120, 126. A court must engage in a three-tiered analysis to determine whether a political subdivision is entitled to immunity pursuant to
{¶19} The parties do not dispute that Grafton is a political subdivision as defined by
{¶20} Plaintiff asserts that the exception to immunity set forth in
{¶21} In contrast, Grafton maintains that the
{¶22} On appeal, this court analyzed the same exception to immunity,
{¶23} In conducting this inquiry, we examined pertinent provisions of the OMUTCD. We noted initially that the introduction to the OMUTCD states that the material
Guidance:
STOP signs should be used if engineering judgment indicates that one or more of the following conditions exist:
A. Intersection of a less important road with a main road where application of the normal right-of-way rule would not be expected to provide reasonable compliance with the law;
B. Street entering a through highway or street (
O.R.C. Section 4511.65 provides information on through highways (see Appendix B2));C. Unsignalized intersections in a signalized area; and/or
D. High speeds, restricted view, or crash records indicate a need for control by the STOP sign.
{¶24} Pursuant to the language in Section 2B.05 of the OMUTCD stating that stop signs “should” be used if engineering judgment indicates that one or more of the listed conditions exists, this court determined that plaсement of the stop sign at issue was discretionary and not mandatory. Id. at ¶20, 22. We noted that “the General Assembly explicitly excluded traffic control devices from the definition of a ‘public road’ unless the traffic control device was mandated by the OMUTCD. By its clear language, it is evident that the General Assembly did not intend all erected traffic control devices to be considered part of a public road. * * * [
{¶25} Plaintiff contends that Walters does not control the instant case because the intersection at issue there involved two city streets, not a state through highway and a township road. Plaintiff argues that Section 2B.05(B) of the OMUTCD incorporates
{¶26} Assuming arguendo that the immunity exception in
{¶27} Grafton argues that the defenses in both
The political subdivision is immune from liability if the injury, death, or loss to person or property 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.
{¶28} Under
{¶29}
{¶30} In order to demonstrate an exercise of discretion for which
Sometimes there‘s projects you can leave go, sometimes there‘s projects you can‘t. And in this situation we could not
leave a huge hole open at the side of the road where a car could fall in it, because now I‘m damned if I do, and I‘m damned if I don‘t. If I leave and go fix the stop sign and somebody goes into that hole and gets hurt, “Why did you leave that hole there?” Again as we stated, we didn‘t have any barricades, we didn‘t have any ribbon to put around there, nothing. And you can‘t leave a backhoe sit there [at the Law/Chamberlain worksite], because if somebody hits the backhoe, it‘s our fault. So there was – I mean, I was in a catch 22, and I felt I had to get this hole filled first.
(Raksi Depo. at 52-53.)
{¶31} Raksi also testified that both he and Richards would have had to abandon the Law/Chamberlain worksite because replacing a downed stop sign is a two-person enterprise due to the hard, gravel berms. He further averred that two persons were required to be at the Law/Chamberlain worksite, since it was necessary to have one person perform the work on the open ditch and the other to direct traffic. Raksi also considered the fact that the backhoe was present at the Law/Chamberlain worksite, presenting a danger to passing motorists. Raksi‘s testimony еvidences a ” ‘positive exercise of judgment that portrays a considered adoption of a particular course of conduct in relation to an object to be achieved.’ ” Bush at ¶57, quoting Addis at 60.
{¶32} Although we conclude that Raksi‘s decision to eliminate the danger at the Law/Chamberlain worksite before investigating the stop sign at the Law/S.R. 57 intersection resulted from Raksi‘s exercise of judgment and discretion in determining how to use Grafton‘s equipment and personnel,
{¶33} In the context of political subdivision immunity, wanton misconduct is “the failure to exercise any care whatsoever.” Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 356, 1994-Ohio-368, citing Hawkins v. Ivy (1977), 50 Ohio St.2d 114, syllabus. ” ‘[M]ere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor.’ ” Id. at 356, quoting Roszman v. Sammet (1971), 26 Ohio St.2d 94, 96-97. “Such perversity must be under such conditions that the actor must be conscious that his conduct will in all probability result in injury.” Id., citing Roszman at 97. Reckless conduct occurs when an individual acts or intentionally fails to do an act that is his duty to the other to do, knowing or having reason to know of facts that would lead a reasonable person to realize, not only that his or her conduct creates an unreasonable risk of physical harm to another, but also that such a risk is substantially greater than what is necessary to make the conduct negligent. Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104-05, citing 2 Restatement (Second) of Torts (1965), Section 500.
{¶34} Plaintiff has рresented no evidence to counter Raksi‘s description of the two potentially dangerous road conditions present on July 2, 2007. Further, plaintiff has presented no evidence suggesting that Raksi exercised no care whatsoever or that he was conscious that his failure to replace the stop sign at the Law/S.R. 57 intersection would in all probability result in injury, or that he intentionally failed to act, knowing or having reason to know, that such failure to act created an unreasonable risk of physical harm to another. Raksi testified that the open ditch at the Law/Chamberlain intersection and the downed stop sign at the Law/S.R. 57 intersection posed equally dangerous
{¶35} Finally, we briefly address plaintiff‘s reliance on the Twelfth District Court of Appeals’ decision in Richardson v. Mason (1994), 93 Ohio App.3d 175. There, the plaintiff was involved in a collision аt the intersection of State Route 48 (“S.R. 48“), a state highway and Center Spring Road (“Center Spring“), a township road. The plaintiff was traveling on S.R. 48 when another motorist entered the plaintiff‘s lane of travel from Center Spring. The stop sign governing Center Spring was missing on the date of the accident. The trial court granted the township‘s motion for summary judgment, finding that the township owed no duty to maintain or erect the stop sign at issue.
{¶36} The court of appeals reversed, explaining at 177:
The legislature has divided responsibilities for erecting and maintaining traffic control devices between state and local authorities. Under
R.C. 4511.65 , a local authority must erect a stop sign on a highway under its jurisdiction that intersects with a through highway. UnderR.C. 4511.65 , State Route 48 is a through highway and Center Spring Road is a highway. Center Spring Road is, according to an affidavit of the Warren County Engineer and a certified map of Clearcreek Township, under the jurisdiction of Clearcreek Township, which is a local authority.Thus, Clearcreek has a duty to erect a stop sign * * * on Center Spring Road where it intersects with State Route 48. Under
R.C. 5535.01(C) , Clearcreek has a duty to maintain Center Spring Road and, underR.C. 4511.11(A) , to place and maintain the traffic control devices required underR.C. 4511.65 .
{¶38} Richardson is distinguishable from the instant case on two bases. First, the defense of political subdivision immunity was not at issue in Richardson. Second, it is undisputed here that the state, not Grafton, was responsible for placing and maintaining the stop sign at the Law/S.R. 57 intersection. Accordingly, we find plaintiff‘s reliance on Richardson without merit.
{¶39} Having held that Grafton is entitled to immunity from liability for plaintiff‘s claims pursuant to
{¶40} In his third assignment of errоr, Raksi contends that the Court of Claims erred in denying his motion for summary judgment regarding his individual immunity from liability for plaintiff‘s claims. As relevant here,
{¶41} We turn next to a consideration of Piwinski‘s assignments of error, which contend that the Court of Claims erred in denying his motion for summary judgment. Piwinski‘s first assignment of error argues that, because plaintiff sued him solely in his official capacity as an employee of Lorain County, the suit against him constituted a suit against Lorain County, and the Court of Claims erred in failing to employ thе requisite political subdivision analysis set forth in
{¶42} Piwinski‘s second and third assignments of error are interrelated and thus will be considered together. Piwinski‘s second assignment of error contends the Court of Claims erred in determining that he voluntarily assumed a duty of care to plaintiff‘s decedent when he offered to call ODOT and report the downed stop sign. Piwinski‘s third
{¶43}
{¶44} Here, construing the evidence in a light most favorable to plaintiff, the record establishes that Piwinski acted negligently in failing to notify ODOT of the downed stop sign after having volunteered to do so. Plaintiff points to no
Judgment reversed.
BRYANT, P.J., and FRENCH, J., concur.
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