Snay v. Burr (Slip Opinion) ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Snay
v. Burr, Slip Opinion No. 2021-Ohio-4113.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2021-OHIO-4113SNAY, ET AL., APPELLANTS, v. BURR, ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Snay v. Burr, Slip Opinion No. 2021-Ohio-4113.]
Torts—Negligence—Duty of care—An adjacent landowner or an occupier of land
adjacent to a public road does not owe a duty of care to an errant motorist
who strikes an off-road object in the right-of-way, such as a mailbox, if the
object does not affect the safety of ordinary travel on the regularly traveled
portion of the road—Judgment affirmed.
(No. 2020-1057—Submitted June 16, 2021—Decided November 24, 2021.)
APPEAL from the Court of Appeals for Huron County, No. H-19-016,
2020-Ohio-3828.
__________________
O’CONNOR, C.J.
{¶ 1} In this appeal, we consider whether an owner of land adjacent to a
public road (“adjacent landowner”) or an occupier of such land owes a motorist
upon that road a duty of care with respect to a stationary object in the right-of-way
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and if so, to what extent. This appeal specifically asks us to consider the liability,
if any, of an adjacent landowner for catastrophic injuries sustained by a motorist as
a result of the motorist’s collision with the landowner’s reinforced mailbox after
hitting a patch of ice and leaving the ordinarily traveled portion of the road.
{¶ 2} Appellants, Cletus Snay (“Snay”) and Kelly Snay, acknowledge that
under existing Ohio law an adjacent landowner generally owes no duty of care to a
motorist who leaves the regularly traveled portion of the road and strikes an object
in the right-of-way. But they ask this court to recognize an exception to that general
rule and to hold that an adjacent landowner does owe a duty of care to a motorist
who unintentionally strays from the regularly traveled portion of the road if the
landowner has consciously created a hazard in the right-of-way with knowledge of
the danger it would present to such a motorist. For the following reasons, we
decline to do so.
I. Facts and procedural background
{¶ 3} The facts of this case are undisputedly tragic. On the afternoon of
December 19, 2016, Snay was driving on Young Road—a two-lane country road—
en route from his home in Norwalk to his workplace in Bellevue, a route he had
driven without incident for five years. Although it was sunny and clear, Young
Road was wet and icy, with patches of “black ice.” Snay does not remember
anything about that day other than driving toward his workplace.
{¶ 4} At approximately 2:44 p.m., Ohio Highway Patrol Trooper Robert
Jones responded to a dispatch for a one-vehicle roll-over crash with a trapped
occupant. When he arrived on the scene, Trooper Jones found Snay’s rolled-over
pickup truck off the north side of Young Road and emergency personnel treating
Snay for visible head injuries. Upon investigation, Trooper Jones concluded that
Snay’s truck went off the right side of the road, began to fishtail, struck two
mailboxes, and overturned. He determined that the truck began to roll after it struck
the first mailbox—belonging to appellees, Matthew Burr (“Burr”) and Diane
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Burr—but before it hit the second mailbox. There are no known witnesses to the
accident.
{¶ 5} As a result of the accident, Snay suffered damage to his C5–C7 discs,
rendering him quadriplegic.
{¶ 6} The Burrs’ mailbox was located one foot, nine inches from the edge
of the road, within the right-of-way.1 Burr installed the mailbox in 1996 after the
Burrs’ previous mailbox had been broken, following repeated instances of
suspected vandalism.
{¶ 7} Before installing the mailbox, Burr obtained from his local post office
a one-page document of guidelines for mailbox installation published by the United
States Postal Service. He acknowledged that those guidelines were likely intended
to promote traffic safety. He recalled that the guidelines recommended, but did not
require, that a metal mailbox support be two-inch-diameter standard-steel or
aluminum pipe and that the support be buried no more than 24 inches deep. For his
mailbox support, however, Burr used an eight-inch-diameter metal pipe, which he
buried 36 inches deep. Burr testified that he packed the support hole for the mailbox
with old, powdered concrete mix, dirt, and stones, with the understanding that if it
rained and the concrete mix was still good, it “might set up” and hold the support
in place “a little stiffer.” Although Burr testified that he wanted the new mailbox
post to deter vandals, he was “fairly confident” that the mailbox post would “lay
over” if someone hit it. Following the accident, the Burrs’ mailbox post remained
in the ground, while the second mailbox that Snay’s truck hit was destroyed.
{¶ 8} The Snays’ accident reconstructionist, James Crawford, agreed with
Trooper Jones’s assessment that Snay’s truck began to roll over after striking the
1. “Right-of-way” is a “general term denoting land, property, or the interest therein, usually in the
configuration of a strip, acquired for or devoted to transportation purposes. When used in this
context, right-of-way includes the roadway, shoulders or berm, ditch, and slopes extending to the
right-of-way limits under the control of the state or local authority.” R.C. 4511.01(UU)(2).
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Burrs’ mailbox. But unlike Trooper Jones, who did not believe the Burrs’ mailbox
had any causative effect on the truck’s rolling over, Crawford opined that “[t]he
mechanism [that] caus[ed] the pickup to overturn in this case was the unyielding
heavy metal pipe mailbox support.” Crawford’s report cited mailbox-support
guidelines published by the United States Postal Service and by the American
Association of State Highway and Transportation Officials with which the Burrs’
mailbox support did not comply. He characterized the Burrs’ mailbox support as
“a dangerous hazard to motorists” and “a proximate cause for the roll-over” that
resulted in Snay’s injuries.
{¶ 9} The Snays sued the Burrs for compensatory damages for Snay’s
injuries and for appellant Kelly Snay’s loss of consortium, as well as for punitive
damages. They alleged that the Burrs were “negligent, reckless and careless in
erecting their mailbox because it was supported by a thick, non-breakaway metal
pipe.” In support of their claim for punitive damages, they additionally alleged that
the Burrs acted wantonly, recklessly, and with gross negligence.
{¶ 10} The Burrs moved for summary judgment, arguing that they owed no
duty of care to Snay and that Snay’s failure to control his vehicle on the regularly
traveled portion of the road was the sole proximate cause of his injuries. The trial
court granted the Burrs’ motion, holding that Ohio law does not impose upon an
adjacent landowner a duty of care to motorists who lose control of their vehicles,
leave the ordinarily traveled portion of the road, and strike an off-road object in the
right-of-way.
{¶ 11} In a two-to-one decision, the Sixth District Court of Appeals
affirmed the trial court’s entry of summary judgment. The majority agreed with
the trial court that the Burrs owed no duty of care to Snay, but it also held that the
record did not support a finding that the Burrs’ conduct was a proximate cause of
Snay’s injuries. Judge Mayle dissented, concluding that under the facts of this case
the Burrs owed Snay a duty to install their mailbox in a reasonably safe manner and
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that reasonable minds could differ as to whether the Burrs’ construction of their
mailbox was a proximate cause of Snay’s injuries.
{¶ 12} This court accepted the Snays’ discretionary appeal, which presents
three propositions of law. See 160 Ohio St.3d 1438, 2020-Ohio-4938, 155 N.E.3d
940. In their first proposition of law, the Snays argue that an adjacent landowner
owes a duty of care to an errant motorist who strikes an off-road hazard in the right-
of-way if the landowner has consciously created the hazard with knowledge of the
danger it may present to a motorist who veers off the road. In their second
proposition of law, they ask this court to hold that the open-and-obvious doctrine
does not apply when an adjacent landowner consciously places a hazard in a right-
of-way in close proximity to the traveled portion of the highway. And in their third
proposition of law, the Snays ask this court to hold that their accident
reconstructionist’s opinion that Snay’s truck would not have overturned but for its
collision with the Burrs’ mailbox was admissible and sufficient to demonstrate a
genuine issue of material fact regarding proximate cause. Because the Snays’ first
proposition of law is dispositive of this appeal, we need not reach the second and
third propositions of law.
II. Analysis
A. The foundational element of duty
{¶ 13} Other than their claim for punitive damages, the Snays’ claims sound
in negligence. Liability for negligence arises from an injury caused by a
defendant’s failure to discharge a duty owed to the injured plaintiff. Di Gildo v.
Caponi, 18 Ohio St.2d 125, 127, 247 N.E.2d 732 (1969). To prove actionable
negligence, a plaintiff must establish (1) the existence of a legal duty owed to the
injured party, (2) the defendant’s breach of that duty, and (3) that an injury
proximately resulted from the defendant’s breach of duty. Mussivand v. David, 45
Ohio St.3d 314, 318, 544 N.E.2d 265 (1989), citing Di Gildo.
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{¶ 14} The Snays’ first proposition of law concerns the foundational
element of duty. “A person’s failure to exercise ordinary care in doing or failing to
do something will not amount to actionable negligence unless such person owed to
someone injured by such failure a duty to exercise ordinary care.” United States
Fire Ins. Co. v. Paramount Fur Serv., Inc., 168 Ohio St. 431, 156 N.E.2d 121(1959), paragraph three of the syllabus. See also Gedeon v. East Ohio Gas Co.,
128 Ohio St. 335, 338, 190 N.E. 924 (1934) (“before failure to use [ordinary care]
can be made the basis for recovery it must appear that the plaintiff falls within the
class of persons to whom a duty of care was owing”). In other words, if there is no
duty then there can be no liability for negligence. Jeffers v. Olexo, 43 Ohio St.3d
140, 142, 539 N.E.2d 614 (1989). Unlike the question whether a defendant has
properly discharged an applicable duty of care, which is generally a question of fact
for the jury, see Gedeon at 338, the question whether a duty exists to begin with is
a question of law for the court, Mussivand at 318.
{¶ 15} In the context of Ohio tort law, “[d]uty * * * refers to the relationship
between the plaintiff and the defendant from which arises an obligation on the part
of the defendant to exercise due care toward the plaintiff.” Commerce & Industry
Ins. Co. v. Toledo, 45 Ohio St.3d 96, 98, 543 N.E.2d 1188 (1989), citing Baltimore
& Ohio Southwestern Ry. Co. v. Cox, 66 Ohio St. 276, 64 N.E. 119 (1902). “[A]
defendant’s duty to a plaintiff depends upon the relationship between the parties
and the foreseeability of injury to someone in the plaintiff’s position.” Simmers v.
Bentley Constr. Co., 64 Ohio St.3d 642, 645, 597 N.E.2d 504 (1992). “As a society,
we expect people to use reasonable precautions against the risks that a reasonably
prudent person would anticipate.” Cromer v. Children’s Hosp. Med. Ctr. of Akron,
142 Ohio St.3d 257, 2015-Ohio-229, 29 N.E.3d 921, ¶ 24, citing Commerce &
Industry Ins. Co. at 98. An injury is foreseeable if a reasonably prudent person
under the same or similar circumstances as the defendant should have known that
the conduct in question was likely to result in injury to the plaintiff or to someone
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in a like situation. Commerce & Industry Ins. Co. at 98. Foreseeability alone,
however, is not always sufficient to establish a duty of care. Estates of Morgan v.
Fairfield Family Counseling Ctr., 77 Ohio St.3d 284, 293, 673 N.E.2d 1311 (1997),
superseded by statute on other grounds as stated in Dillon v. OhioHealth Corp.,
2015-Ohio-1389, 31 N.E.3d 1232 (10th Dist.).
{¶ 16} The only relationship between Snay and the Burrs stems from Snay’s
status as a motorist on the public road adjacent to the Burrs’ property and on the
public right-of-way that extended over a portion of that property. To assess whether
the Burrs owed a duty of care to Snay, we therefore look to precedent that addresses
the duties owed to motorists on public roads by adjacent landowners or occupiers
of adjacent land, whether they be political subdivisions, utility companies, or
private persons.
B. Whether an adjacent landowner or an occupier of land
adjacent to a public road owes a duty to motorists with respect to
an off-road object in a right-of-way depends on whether the object
affects ordinary travel on the regularly traveled portion of the road
{¶ 17} In Manufacturer’s Natl. Bank of Detroit v. Erie Cty. Rd. Comm., 63
Ohio St.3d 318, 587 N.E.2d 819 (1992), this court addressed two questions of law
certified by the United States Court of Appeals for the Sixth Circuit. In
Manufacturer’s, a fatal automobile accident occurred at a rural intersection where
corn growing in the right-of-way obstructed motorists’ vision of cross-traffic at the
two-way stop. The plaintiffs sued the township where the intersection was located
and the occupier of the adjacent land on which the corn was growing. In an appeal
from the district court’s entry of summary judgment in favor of the defendants, the
federal court of appeals certified to this court two questions of Ohio law concerning
the duties owed to motorists on public roads by the township and by the occupier
of the adjacent land.
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{¶ 18} We first addressed the township’s duty, which arose from the
statutory requirement in R.C. 2744.02(B)(3) that a township keep its highways
open, in repair, and free from nuisance.2 The plaintiffs argued that the extension of
the cornfield into the right-of-way constituted a nuisance because it rendered the
intersection unsafe by obstructing motorists’ sightlines. Addressing the scope of
the township’s duty, we stated that “the focus should be on whether a condition
exists within the political subdivision’s control that creates a danger for ordinary
traffic on the regularly travelled portion of the road.” Manufacturer’s at 322. In
other words, the focus was on the condition’s effect on ordinary traffic; the
township’s duty required it to keep the right-of-way “free from * * * conditions that
directly jeopardize[d] the safety of traffic on the highway.” Id. We thus held that
“a permanent obstruction to visibility in the right-of-way, which renders the
regularly travelled portions of the highway unsafe for the usual and ordinary course
of travel, can be a nuisance for which a political subdivision may be liable.” Id. at
323.
{¶ 19} We then turned to the second certified question, which concerned
the duty of the occupier of the adjacent property who was growing corn in the right-
of-way. We began by noting that the right-of-way, having been appropriated for
highway purposes, was under the control of the state or local government and
therefore the occupier of the land was not free to use it as he pleased. Id. We stated
that growing crops in a right-of-way serves no highway purpose and that if the crops
create a hazard to safe travel on the highway by obstructing motorists’ vision, then
the usage is also inconsistent with the right-of-way’s purpose. Id. at 324. We held
that “where the abutting landowner or occupier uses the highway right-of-way in a
2. The General Assembly subsequently amended R.C. 2744.02(B)(3) to limit political-subdivision
liability for injuries and deaths to those caused by “an obstacle that blocks or clogs the roadway and
not merely a thing or condition that hinders or impedes the use of the roadway or that may have the
potential to do so.” Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 2008-Ohio-2792, 891
N.E.2d 311, ¶ 30.
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manner inconsistent with a highway purpose, and where such usage constitutes an
unreasonable hazard to the users of the highway, the landowner or occupier may be
liable for damages proximately caused by the improper use of the right of way.”
Id.{¶ 20} The Snays suggest that recognition of a duty under the facts of this
case would not conflict with this court’s holding in Manufacturer’s, because, they
contend, under the holding in Manufacturer’s, an adjacent landowner or an
occupier of land adjacent to a public road owes a broader duty to motorists than
does the political subdivision to which the road and right-of-way are dedicated.
They argue that while this court limited the township’s duty to keeping the right-
of-way free from any obstruction that “renders the regularly travelled portions of
the highway unsafe for the usual and ordinary course of travel,” id., 63 Ohio St.3d
318, 587 N.E.2d 819, at paragraph one of the syllabus, we did not use similar
limiting language with respect to the duty owed to motorists by the adjacent
landowner or occupier of the adjacent land. Instead, the Snays posit, this court held
that a landowner’s or occupier’s duty to a motorist arises from the landowner’s or
occupier’s use of the right-of-way “in a manner that is inconsistent with a highway
purpose, and where such usage constitutes an unreasonable hazard to the users of
the highway,” id. at paragraph two of the syllabus. They maintain that “an
unreasonable hazard to the users of the highway” encompasses an off-road hazard
that a motorist might encounter upon veering off the road, even if the hazard does
not endanger ordinary travel on the regularly traveled portion of the road. We
disagree with the Snays’ reading of Manufacturer’s.
{¶ 21} As the Snays concede, Manufacturer’s is factually different from
this case because the accident in Manufacturer’s occurred on the regularly traveled
portion of the road and in the ordinary course of travel through the intersection.
Further, there was no dispute in Manufacturer’s that the corn growing in the right-
of-way rendered ordinary travel on the road unsafe by obscuring motorists’
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visibility of cross-traffic, which ultimately resulted in the fatal crash. Because of
those undisputed facts, there was no reason for the court to consider whether the
occupier’s duty would also extend to an off-road condition that did not render
ordinary travel on the road unsafe but which might present a hazard to a motorist
who leaves the regularly traveled portion of the road. Review of the opinion in
Manufacturer’s makes clear, however, that this court focused on an obstruction’s
effect on the safety of ordinary on-road travel with respect to both the township’s
duty to motorists and the duty owed by an occupier of adjacent land. See id. at 324
(“if the crops obstruct a driver’s vision in a way that creates a hazard to safe travel
on the highway, the usage is inconsistent with the right-of-way’s purpose”). We
therefore reject the Snays’ argument that this court’s holding in Manufacturer’s
recognizes a duty to motorists owed by an adjacent landowner or an occupier of
land adjacent to a public road with respect to obstructions in the right-of-way that
do not affect the safety of ordinary travel on the road.
{¶ 22} Since this court’s decision in Manufacturer’s, we have consistently
considered the effect that an object or obstruction in a right-of-way has on the
ordinary use of the roadway when determining the existence of duties owed to
motorists. See, e.g., Turner v. Ohio Bell Tel. Co., 118 Ohio St.3d 215, 2008-Ohio-
2010, 887 N.E.2d 1158; Link v. FirstEnergy Corp., 147 Ohio St.3d 285, 2016-Ohio-
5083, 64 N.E.3d 965.
{¶ 23} Akin to the facts here, Turner involved a motorist’s off-road
collision with a stationary, man-made object in the right-of-way. In Turner, an
automobile passenger died when the driver inadvertently drove off the road in
darkness and fog and struck a utility pole located in a grassy portion of the right-
of-way. The administrator of the passenger’s estate sued the utility companies for
negligently placing, maintaining, and using the utility pole in such close proximity
to the road. This court held that the trial court properly granted summary judgment
in favor of the utility companies on the plaintiff’s negligence claim.
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{¶ 24} Although Turner involved the duty of public utilities vis-à-vis the
placement of a utility pole, we noted that our holding in that case was consistent
with “the approach that we have taken regarding liability of political subdivisions
and private landowners for injuries caused by objects within the right-of-way of the
road,” id. at ¶ 22, citing Strunk v. Dayton Power & Light Co., 6 Ohio St.3d 429,
453 N.E.2d 604 (1983), and Manufacturer’s, 63 Ohio St.3d 318, 587 N.E.2d 819.
We reiterated that the focus, with respect to the duties owed to motorists by political
subdivisions and by private landowners or occupiers, is not on the location of an
off-road object but on whether that object “makes the roadway unsafe for the usual
and ordinary course of travel.” (Emphasis sic.) Id. And we held that “when a
vehicle collides with a utility pole located off the improved portion of the roadway
but within the right-of-way, a public utility is not liable, as a matter of law, if the
utility has obtained any necessary permission to install the pole and the pole does
not interfere with the usual and ordinary course of travel.” Id. at ¶ 21. See also
Link at ¶ 39 (“Absent evidence of interference with the usual and ordinary course
of travel on the roadway, [the utility companies] did not have a duty to remove off-
road objects within the public right-of-way that might come in contact with
wayward vehicles”).
{¶ 25} Recognizing that “a motorist is not free to drive on the right-of-way
as he or she pleases,” Turner, 118 Ohio St.3d 215, 2008-Ohio-2010, 887 N.E.2d
1158, at ¶ 17, we reasoned that the off-road utility pole did not interfere with the
public’s use of the road, because “a motorist properly using the usual and ordinary
course of travel would not come into contact with” it, id. at ¶ 26. In reaching this
decision, we cited with approval Ramby v. Ping, 2d Dist. Greene No. 93-CA-52,
1994 WL 124829 (Apr. 13, 1994), in which the Second District Court of Appeals
“declined to extend Manufacturer’s to impose a duty on adjacent landowners and
municipalities to keep a right-of-way free of objects that pose a danger to vehicles
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that may foreseeably leave the traveled portion of the roadway.” Turner at ¶ 23.
We also quoted the Second District’s rationale:
“No precedent exists for imposing a duty on public or private
landowners to remove an off-road hazard that renders only off-road
travel unsafe, unless the off-road travel is shown to be an aspect of
the usual and ordinary course of travel on the roadway. Otherwise,
every tree and solid fixed object on roadsides and road-shoulders
would impose potential liability on public and private landowners
for collisions occurring whenever a vehicle was driven off-road and
into the object.”
Turner at ¶ 23, quoting Ramby at *3. See also Floering v. Roller, 6th Dist. Wood
No. WD-02-076, 2003-Ohio-5679, ¶ 18 (landowner owed no duty to motorist who
struck a tree in the right-of-way, because the tree did not obstruct the motorist’s
vision and could “only be a hazard when a vehicle leaves the highway”).
{¶ 26} Here, the Burrs’ mailbox did not render ordinary travel on the
regularly traveled portion of Young Road unsafe. To the extent the mailbox
presented a hazard to motorists, it did so only with respect to those motorists who
errantly left the road.
C. An adjacent landowner or occupier of land adjacent to a public road
does not owe a duty of care to motorists with respect to a hazard
in the right-of-way that does not affect the safety
of the ordinary course of travel on the road
{¶ 27} Despite this court’s consistent holdings that an adjacent landowner
or an occupier of land adjacent to a public road owes no duty to motorists regarding
an off-road hazard that does not affect the safety of ordinary on-road travel, the
Snays encourage us to recognize an exception to that rule. They argue that Burr’s
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“unreasonably dangerous construction” of his mailbox, with knowledge that the
construction was inconsistent with the nonbinding guidelines published by the
United States Postal Service, gave rise to a duty of care to motorists who might
foreseeably leave the road and strike the mailbox.
{¶ 28} As support for their proposed exception, the Snays cite a footnote
from Ramby. After the Second District determined in Ramby that the city of
Beavercreek did not have a duty to remove an off-road hazard that rendered only
off-road travel unsafe, 2d Dist. Greene No. 93-CA-52, 1994 WL 124829 at *3, the
appellate court stated that the plaintiff had identified no authority for subjecting the
adjacent landowner to a greater duty to maintain the right-of-way free from
nuisance than that imposed upon the city to which the right-of-way had been
dedicated, id. at *5. In a footnote, however, the court noted: “The only distinction
we can envision would be if the owner of the adjacent property had actual or
constructive knowledge of the nuisance, while the municipality had no such
notice.” Id. at fn. 2.
{¶ 29} The Snays’ reliance on the Ramby footnote is unwarranted. First,
the footnote was dicta and therefore had no bearing on the legal holding in that case.
Indeed, the footnote itself also states, “Notice is not an issue in the case before us.”
Id. Second, as far as we can discern, no Ohio appellate court has applied the
exception that the Second District “envisione[d]” in the footnote.3 Finally, we
reject the Snays’ characterization of the Ramby footnote as articulating an exception
to the settled rule regarding an adjacent landowner’s duty to a motorist with respect
to an object in the right-of-way.
3. The Sixth District has cited Ramby for the proposition that “there is no authority for imposing a
greater duty on the adjacent landowner to remove an off-the-road hazard that did not affect travel
upon the highway unless the landowner had actual or constructive knowledge of the danger posed
to travelers on the highway.” Floering, 6th Dist. Wood No. WD-02-076, 2003-Ohio-5679, at ¶ 19.
But as in Ramby, knowledge was not at issue in Floering.
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{¶ 30} The footnote in Ramby focuses on knowledge of a nuisance, which
we have defined in this context as an object or condition that renders a road unsafe
for the usual and ordinary course of on-road travel. See Manufacturer’s, 63 Ohio
St.3d at 322, 587 N.E.2d 819; Strunk, 6 Ohio St.3d at 430, 453 N.E.2d 604. The
Second District recognized as much in its discussion of the city’s duty in Ramby.
See id. at *3. Although knowledge might affect exposure to liability, it is irrelevant
to whether an object or condition constitutes a nuisance. See Harp v. Cleveland
Hts., 87 Ohio St.3d 506, 512, 721 N.E.2d 1020 (2000) (unsound tree limb that fell
from the city’s adjacent property onto a motorist’s vehicle traveling along a public
road, killing the driver, constituted a nuisance, but city’s liability was contingent
upon its having actual or constructive knowledge of the nuisance). If an adjacent
landowner or occupier of land adjacent to the road has knowledge of a nuisance—
a condition that jeopardizes the safety of traffic on the ordinarily traveled portion
of the road—in the right-of-way, while the political subdivision to which the right-
of-way was dedicated does not, the landowner or occupier might be liable for
negligence even if the political subdivision may not. But in any case, first there
must be a condition or obstruction that jeopardizes the safety of traffic on the
ordinarily traveled portion of the road.
{¶ 31} The Snays also argue that their proposed exception to the general
rule is consistent with 2 Restatement of the Law 2d, Torts, Section 368, at 268
(1965), which states:
A possessor of land who creates or permits to remain thereon
an excavation or other artificial condition so near an existing
highway that he realizes or should realize that it involves an
unreasonable risk to others accidentally brought into contact with
such condition while traveling with reasonable care upon the
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highway, is subject to liability for physical harm thereby caused to
persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of
travel.
{¶ 32} This court has not previously adopted that Restatement section, and
we decline to do so now, in part because we do not read Section 368 as imposing a
duty on the Burrs under the facts of this case.
{¶ 33} Section 368 refers to a landowner’s or occupier’s knowledge that an
artificial condition “involves an unreasonable risk to others accidentally brought
into contact with [it] while traveling with reasonable care upon the highway.”
(Emphasis added.) Id. As we have already determined, the Burrs’ mailbox did not
involve a risk of harm to ordinary travel on Young Road.
{¶ 34} Comment e to Section 368 states that to the extent the Restatement
section protects motorists who leave the regularly traveled portion of the road, it
applies only “to those who reasonably and expectably deviate from the highway
and enter upon the abutting land in the ordinary course of travel.” (Emphasis
added.) Section 368 distinguishes between deviations “which are normal incidents
of travel and those which are not.” Id. at Comment g. Many courts that have
adopted Section 368 have rejected the notion that a negligent deviation from the
regularly traveled portion of a road is a normal incident of travel that must be
foreseen and guarded against. See, e.g., Bergen v. Texas-New Mexico Power Co.,
130 S.W.3d 379, 381 (Tex.App.2004) (deviation from the road following a tire
blowout was not in the ordinary course of travel); Soares ex rel. Estate of Soares v.
George A. Tomasso Constr. Corp., 66 Conn.App. 466, 469-474, 784 A.2d 1041(2001) (drunk driver’s deviation from the road was not in the ordinary course of
travel); McAllen v. De La Garza, 898 S.W.2d 809, 809-812 (Tex.1995) (intoxicated
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driver who fell asleep and veered off the road “was not travelling with reasonable
care upon the highway nor was his deviation in the ordinary course of travel”);
Kavanaugh v. Midwest Club, Inc., 164 Ill.App.3d 213, 517 N.E.2d 656 (1987) (no
duty owed to driver who deviated from the highway during an epileptic seizure and
drove into a retention pond). In Kavenaugh, the court stated that for a duty to attach,
there must be “facts that demonstrate that the condition of the roadway is such that
a vehicle is likely to deviate from it in the ordinary course of travel and come in
contact with the artificial condition.” Id. at 218.
{¶ 35} The Sixth District’s opinion in Swaisgood v. Puder, 6th Dist. Erie
No. E-06-033, 2007-Ohio-307, offers an example of a deviation from the regularly
traveled portion of a road that was part of the ordinary course of travel. There, a
tractor-trailer collided with an off-road utility pole located at an intersection
adjacent to a truck stop. The Sixth District acknowledged that a utility company
may not place its poles within a right-of-way in a manner that will unreasonably
interfere with the public’s reasonable and ordinary use of the road for travel. Id. at
¶ 19. The plaintiff in Swaisgood presented expert testimony that the lack of
effective clearance for large vehicles (like those that regularly used the truck stop)
forced those vehicles to either encroach into adjacent lanes of traffic or to travel on
the unpaved area of the right-of-way where the utility pole was located. Id. at ¶ 22-
23. The expert testified that the utility pole, although located off the road itself,
was “ ‘within the area that large vehicles would typically travel.’ ” Id. at ¶ 23. In
reversing the trial court’s entry of summary judgment in favor of the utility
company, the court of appeals held that the utility pole was located in the unpaved
path “regularly traversed by non-errant vehicles.” Id. at ¶ 23, 35.
{¶ 36} Unlike in Swaisgood, in this case there is no suggestion that the
right-of-way beyond the paved portion of Young Road was typically used for
ordinary travel on the road. To the contrary, Snay testified that he had traveled on
Young Road without incident and without leaving the regularly traveled portion of
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the road on his route to and from work for five years. A vehicle traveling ordinarily
and with due care on the road would not come in contact with the Burrs’ mailbox.
{¶ 37} A deviation by a motorist who careens off the road after hitting a
patch of black ice is neither expected nor a normal incident of travel. The motorist
is responsible for keeping his vehicle under control and on the appropriate side of
the road, regardless of weather conditions. Oechsle v. Hart, 12 Ohio St.2d 29, 34,
231 N.E.2d 306 (1967). “Skidding upon wet or icy roadway pavement,” as Snay
did here, “is a circumstance within the power of motorists to prevent.” Id. And
adjacent landowners, like the Burrs, are entitled to presume that motorists will
observe the law and exercise ordinary care. See Swoboda v. Brown, 129 Ohio St.
512, 524, 196 N.E. 274 (1935).
{¶ 38} The Burrs’ mailbox did not affect the safety of ordinary travel on the
regularly traveled portion of Young Road. And Burr’s knowledge that the
mailbox’s construction was inconsistent with nonbinding postal-service guidelines
does not warrant a departure from the general rule that the duty to motorists owed
by an adjacent landowner or an occupier of land adjacent to the road extends only
to conditions in the right-of-way that render ordinary travel on the regularly
traveled portion of the road unsafe. This is true even though there existed the
possibility that a vehicle might negligently veer off the regularly traveled portion
of the road and hit the mailbox.
III. Conclusion
{¶ 39} Because the Burrs’ mailbox did not present a hazard to ordinary
travel on the regularly traveled portion of the road and because Snay’s deviation
from the regularly traveled portion of the road did not constitute a normal incident
of ordinary travel, we conclude that the Burrs did not owe a duty of care to Snay
with respect to their mailbox. And because there can be no liability in negligence
without a duty of care, we affirm the judgment of the Sixth District Court of
Appeals.
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Judgment affirmed.
KENNEDY, FISCHER, DEWINE, and STEWART, JJ., concur.
DONNELLY, J., dissents, with an opinion joined by BRUNNER, J.
_________________
DONNELLY, J., dissenting.
{¶ 40} This case was decided on summary judgment, which requires a
showing “that there is no genuine issue as to any material fact and * * * that
reasonable minds can come to but one conclusion and that conclusion is adverse to
the party against whom the motion for summary judgment is made.” Civ.R. 56(C);
Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46(1978). One aspect of deciding a case on summary judgment that has always
concerned me is relevant here: the presence of a cogent, well-reasoned dissent. In
this case, one of the three judges sitting on the court of appeals dissented. Doesn’t
that establish that reasonable minds cannot come to but one conclusion? And
doesn’t the mere existence of this dissent prove that reasonable minds cannot come
to but one conclusion—especially if another justice joins it?
{¶ 41} In this tragic case, appellant Cletus Snay drove over a patch of ice,
veered off the road, and struck a mailbox, which caused his pickup truck to flip.
The injuries he suffered rendered him a quadriplegic. The issue before us is
whether this accident and the resulting injuries were sufficiently foreseeable such
that whether the landowner owed Snay a duty of care is a question for the jury.
{¶ 42} Appellee Matthew Burr constructed a mailbox in the right-of-way,
which the majority opinion described as “land * * * devoted to transportation
purposes.” Majority opinion, ¶ 6, fn 1. The supporting metal pipe for Burr’s
mailbox was eight inches in diameter; the guidelines that Burr obtained from his
local post office recommend not exceeding two inches in diameter. This eight-
inch-diameter pipe was buried at least 36 inches deep; the guidelines recommend
that the pipe be buried no more than 24 inches deep. Finally, Burr poured concrete
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January Term, 2021
mix into the area around the pipe “with the understanding that if it rained and the
concrete mix was still good, it ‘might set up’ and hold the support in place ‘a little
stiffer.’ ” Id. at ¶ 7, quoting Burr’s testimony. In short, as the majority
acknowledges, despite Burr’s understanding that the guidelines “were likely
intended to promote traffic safety,” he intentionally exceeded the guidelines in an
effort to “deter vandals.” Id. at ¶ 7.
{¶ 43} The guidelines are designed to ensure that a mailbox will “lay over”
when struck. By exceeding them, Burr constructed a mailbox so strong that when
struck by Snay’s pickup truck, the truck rolled over instead of the mailbox laying
over. In my opinion, these facts could justify a jury’s concluding that Burr owed a
duty of care to Snay.
{¶ 44} The trial court, the court of appeals, and this court have concluded
that Burr owed no duty to the Snays. Those conclusions are inconsistent with this
court’s holding in Manufacturer’s Natl. Bank of Detroit v. Erie Cty. Rd. Comm., 63
Ohio St.3d 318, 587 N.E.2d 819 (1992). In that case, we stated that “[w]here an
abutting landowner or occupier uses the highway right-of-way in a manner
inconsistent with a highway purpose, and where such usage constitutes an
unreasonable hazard to users of the highway, the landowner or occupier may be
liable for damages proximately caused by the improper use of the right-of-way.”
Id. at paragraph two of the syllabus. The court was unanimous with regard to the
duty of landowners and occupiers to the users of highways, and the only concern
raised by a justice who dissented in part related to how the holding might affect the
liability of political subdivisions. Id. at 324 (Moyer, C.J., concurring in part and
dissenting in part). Manufacturer’s clearly stands for the proposition that
landowners can be held to owe a duty of care to motorists based on creating an
“unreasonable” hazard in the right-of-way.
{¶ 45} It does not take great imagination to see how the facts of this case
could give rise to a duty of care on the part of Burr. He is the abutting landowner.
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He constructed a mailbox in the right-of-way, which could be deemed inconsistent
with a highway purpose. The mailbox he constructed was essentially an immovable
object designed to deter vandals. His purpose in constructing the mailbox was not
related to transportation and could be deemed an improper use of the right-of-way.
An immovable object in the right-of-way could be deemed an unreasonable hazard.
{¶ 46} It is quite clear that Burr did not build an ordinary mailbox: he
consciously constructed a mini fortress to protect his mailbox. The Snays
essentially argue that after doing so, Burr is not entitled to assert that the mailbox’s
causing harm was unforeseeable and therefore he owes no duty to the public. I
agree. The intentional construction of an immovable object in the right-of-way
raises an issue of foreseeability. For this reason alone, summary judgment was
improper.
{¶ 47} Moreover, the Snays presented testimony from an accident
reconstructionist that the mailbox caused Snay’s truck to roll over and that an
ordinary, unreinforced mailbox would not have done so. Burr presented evidence
that his mailbox did not cause the truck to roll over. This contested fact should be
resolved by a jury.
{¶ 48} Finally, the public policy of this state that relates to foreseeability
and whether a duty of care is owed ought not to condone the construction of
virtually indestructible mailboxes in the right-of-way. I am concerned that some
might read the majority opinion as sanctioning the construction of mailboxes that
are even stronger and more likely to cause harm than Burr’s, without regard to
foreseeable consequences. That slippery slope may result in death the next time a
driver inadvertently veers off the road and strikes an intentionally indestructible
mailbox.
{¶ 49} The Snays may or may not be able to prove their case, but they
should have the opportunity to try. There are issues of material fact that are
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January Term, 2021
disputed. It is obvious that reasonable minds cannot come to but one conclusion
about this case. Summary judgment was improper. I dissent.
BRUNNER, J., concurs in the foregoing opinion.
_________________
Nurenberg, Paris, Heller, & McCarthy Co., L.P.A., Kathleen J. St. John,
Jamie R. Lebovitz, Jeffrey M. Heller, and Brian W. Parker, for appellants.
Hanna, Campbell & Powell, L.L.P., Douglas G. Leak, Kenneth A.
Calderone, and Anne M. Markowski, for appellees.
_________________
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