Pelletier v. Campbell (Slip Opinion) , 153 Ohio St. 3d 611 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Pelletier v. Campbell, Slip Opinion No. 2018-Ohio-2121.]
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
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the opinion is published.
SLIP OPINION NO. 2018-OHIO-2121PELLETIER, APPELLEE, v. THE CITY OF CAMPBELL, APPELLANT, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Pelletier v. Campbell, Slip Opinion No. 2018-Ohio-2121.]
Torts—Political-subdivision immunity—R.C. 2744.02(B)(3)—Whether a stop sign
is “in repair” depends on its physical condition, not whether it no longer
serves its purpose due to an extraneous factor—The duty to “remove
obstructions from public roads” applies only to obstructions that originate
on the public road and does not apply to conditions that are only near or in
the vicinity of public roads.
(No. 2017-0088—Submitted February 14, 2018—Decided June 5, 2018.)
APPEAL from the Court of Appeals for Mahoning County,
No. 15 MA 0220, 2016-Ohio-8097.
_______________________
KENNEDY, J.
{¶ 1} This discretionary appeal from the Seventh District Court of Appeals
presents the question whether the Political Subdivision Tort Liability Act, R.C.
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Chapter 2744, grants immunity to appellant, the city of Campbell, in a personal-
injury action seeking recovery based on the city’s failure to remove foliage that was
growing 34 feet in front of a stop sign. The appellate court affirmed the trial court’s
denial of the city’s motion for summary judgment on the claims of appellee, Judith
Pelletier. It held that there are genuine issues of material fact regarding whether
R.C. 2744.02(B)(3), which provides that a political subdivision may be held liable
for the negligent failure to keep public roads in repair and the negligent failure to
remove obstructions from them, applies as an exception to the city’s immunity from
suit.
{¶ 2} Because the language of R.C. 2744.02(B)(3) is plain and
unambiguous, it must be applied, not interpreted. Sears v. Weimer, 143 Ohio St.
312, 55 N.E.2d 413 (1944), paragraph five of the syllabus. It is not disputed that
the stop sign was mandated and therefore part of the public road. However, the
stop sign was in repair, and because there was no foliage to remove from the stop
sign, the sign was not obstructed.
{¶ 3} Accordingly, the city is entitled to judgment as a matter of law, and
we reverse the judgment of the court of appeals and remand the matter to the trial
court to dismiss the claims against the city.
Facts and Procedural History
{¶ 4} On August 26, 2013, Pelletier was driving down Sanderson Avenue
in Campbell, Ohio, to attend an orientation related to her employment as a high-
school nurse, when she came to the intersection with 12th Street. Traffic on
Sanderson Avenue is controlled by a stop sign, while traffic on 12th Street has the
right-of-way and no stop sign. According to Pelletier, she did not see the stop sign
because trees or large bushes in the “devil strip”—what the parties call the grassy
area between Sanderson Avenue and the sidewalk—blocked it from her view.
Although she saw the intersection, she did not slow down, brake, or look for other
vehicles on 12th Street before proceeding through it. As a result of her failure to
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yield the right-of-way, she collided with another vehicle entering the intersection
on 12th Street.
{¶ 5} In March 2014, Pelletier brought this personal-injury action against
the city, Danny Saulsberry (the owner of the land on which the foliage grew), the
Bank of New York Mellon (which had initiated foreclosure proceedings on
Saulsberry’s property), and Safeguard Properties, L.L.C. (which had previously
contracted to maintain the property for the bank), alleging that their failure to
maintain the devil strip to ensure that the stop sign was visible to approaching traffic
caused her injuries. The bank and Safeguard filed cross-claims against the city,
seeking indemnification and contribution. Pelletier later settled her claims against
Safeguard.
{¶ 6} The city moved for summary judgment against Pelletier and the bank,
asserting that it is immune from liability pursuant to R.C. Chapter 2744, because
the city had no duty to maintain the stop sign, the stop sign was not obstructed, and
the city lacked notice of the overgrown foliage. The city supported its motion with
the affidavit of Gary Bednarik, the city’s park and street superintendent, who
averred that the stop sign was 34 feet, two inches from the foliage in the devil strip.
{¶ 7} The trial court denied the city’s motion for summary judgment, and
the court of appeals affirmed, holding that the city could be liable for negligently
failing to keep public roads in repair “[w]here, as here, a mandated traffic control
device (which is considered to be, by definition, a public road) no longer serves its
purpose because of some extraneous factor,” such as foliage blocking it. 2016-
Ohio-8097, 75 N.E.3d 779, ¶ 22 (7th Dist.). It also concluded that “[w]hether or
not the failure to remove the foliage here was an obstruction which [the city] was
obligated to remove presents a question of material fact for the trier of fact to
resolve.” Id. at ¶ 18.
{¶ 8} The city appealed to this court, presenting two propositions of law:
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Because an “obstruction” for purposes of determining the
immunity of a political subdivision in all claims which allege a
negligent failure to maintain a “public road” is confined to a
condition which blocks or clogs the roadway, roadside foliage which
does not block or clog travel or render a traffic control device
indiscernible does not qualify as an obstruction.
“Failure to keep public roads in repair” pursuant to the
immunity exception set forth in R.C. 2744.02(B)(3), requires that
the actual public road be in a deteriorated, damaged or disassembled
state from that existing at construction, placement, or
reconstruction.
Positions of the Parties
{¶ 9} On appeal to this court, the city maintains that the appellate court
erred in deciding that a political subdivision can be held liable for failing to keep a
stop sign “in repair” based on “extraneous circumstances entirely unrelated to the
actual condition” of the sign. It points to our decision in Heckert v. Patrick for the
proposition that a road is “in proper repair” when it is not deteriorated or
disassembled. See 15 Ohio St.3d 402, 406, 473 N.E.2d 1204 (1984). The city
contends that liability should not be imposed for the failure to trim or remove tree
limbs that do not affect the condition of the roadway itself—and here, it maintains,
there is no evidence that the stop sign was deteriorated, disassembled, or in any way
damaged. It further argues that the foliage was not an “obstruction” as defined by
this court in Howard v. Miami Twp. Fire Div., i.e., “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,” 119 Ohio St.3d 1, 2008-Ohio-
2792, 891 N.E.2d 311, ¶ 30. Here, the foliage did not completely block the stop
sign or make it indiscernible. The city asserts that the General Assembly amended
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R.C. 2744.02(B)(3) in 2003 to clarify that political subdivisions are not liable for
conditions that merely hinder or impede the use of the public road, and it argues
that “[f]oliage or other extraneous conditions—not located on the traveled portion
of the roadway—that merely impose a potential visual hindrance, but do not
literally render the road sign entirely indiscernible, are not obstructions within the
meaning of the statute.”
{¶ 10} Pelletier responds that the duty to keep public roads in repair requires
a political subdivision “to maintain the proper operation and functioning” of traffic-
control signals that fall within the definition of “public road.” She maintains that
the stop sign on Sanderson Avenue was indiscernible and that therefore it was not
functioning as designed and cannot be considered “in repair.” For this reason, she
contends, the city had a statutory duty to trim or remove limbs that were causing
the stop sign to be “rendered wholly ineffective or even significantly ineffective.”
She argues that this court’s decision in Heckert is distinguishable, because that case
was decided prior to the enactment of R.C. 2744.02(B)(3) and did not concern a
mandated traffic-control device on a public road. Pelletier also asserts that when
foliage “constitutes an obstruction to visibility of the traffic control device,”
rendering it “ineffective or useless,” the city can be held liable based on the
exception to immunity for the negligent failure to remove obstructions from public
roads. She asserts that the foliage at issue here not only blocked part of Sanderson
Avenue but also completely blocked the stop sign and therefore satisfies the
definition of “obstruction” articulated in Howard.
{¶ 11} Accordingly, we are asked to decide whether the failure to remove
foliage growing in the devil strip 34 feet, two inches from a stop sign constitutes
either a failure to keep a public road in repair or a failure to remove an obstruction
from a public road.
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Law and Analysis
Standard of Review
{¶ 12} Whether a party is entitled to immunity is a question of law properly
determined by the court prior to trial pursuant to a motion for summary judgment.
Conley v. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992); see also Riscatti
v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123, 2013-Ohio-4530, 998
N.E.2d 437, ¶ 17 (noting the importance of deciding a political subdivision’s
entitlement to immunity before trial).
{¶ 13} The review of a summary judgment denying political-subdivision
immunity is de novo and is governed by the summary-judgment standard set forth
in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d
712, ¶ 8. As we explained in M.H. v. Cuyahoga Falls,
Summary judgment may be granted when “(1) [n]o 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.”
(Brackets sic.) 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261,
¶ 12, quoting Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267(1977).
Statutory Construction
{¶ 14} This case presents a straightforward question of statutory
interpretation. Our duty in construing a statute is to determine and give effect to
the intent of the General Assembly as expressed in the language it enacted. Griffith
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v. Aultman Hosp., 146 Ohio St.3d 196, 2016-Ohio-1138, 54 N.E.3d 1196, ¶ 18;
Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 20.
R.C. 1.42 guides our analysis, providing that “[w]ords and phrases shall be read in
context and construed according to the rules of grammar and common usage.”
Further, as we explained in Symmes Twp. Bd. of Trustees v. Smyth, “[w]hen the
language of a statute is plain and unambiguous and conveys a clear and definite
meaning, there is no need for this court to apply the rules of statutory
interpretation.” 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000). Rather, “[a]n
unambiguous statute is to be applied, not interpreted.” Sears, 143 Ohio St. 312, 55
N.E.2d 413, at paragraph five of the syllabus.
Political-Subdivision Immunity
{¶ 15} Determining whether a political subdivision is immune from tort
liability pursuant to R.C. Chapter 2744 involves a familiar, three-tiered analysis:
“The first tier is the general rule that a political subdivision is
immune from liability incurred in performing either a governmental
function or proprietary function. * * * However, that immunity is
not absolute. R.C. 2744.02(B); Cater v. Cleveland (1998), 83 Ohio
St.3d 24, 28, 697 N.E.2d 610.
“The second tier of the analysis requires a court to determine
whether any of the five exceptions to immunity listed in R.C.
2744.02(B) apply to expose the political subdivision to liability. Id.
at 28, 697 N.E.2d 610. At this tier, the court may also need to
determine whether specific defenses to liability for negligent
operation of a motor vehicle listed in R.C. 2744.02(B)(1)(a) through
(c) apply.
“If any of the exceptions to immunity in R.C. 2744.02(B) do
apply and no defense in that section protects the political subdivision
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from liability, then the third tier of the analysis requires a court to
determine whether any of the defenses in R.C. 2744.03 apply,
thereby providing the political subdivision a defense against
liability.”
(Ellipsis sic.) Riffle v. Physicians & Surgeons Ambulance Serv., Inc., 135 Ohio
St.3d 357, 2013-Ohio-989, 986 N.E.2d 983, ¶ 15, quoting Colbert v. Cleveland, 99
Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7-9.
Regulation, Maintenance, and Repair of Public Roads
{¶ 16} Our focus is on the second tier of the analysis, because it is not
disputed that regulating, maintaining, and repairing Sanderson Avenue, including
its traffic signs, is a governmental function. See R.C. 2744.01(C)(2)(e) and (j).
{¶ 17} R.C. 2744.02(B)(3) establishes an exception to political-subdivision
immunity: “[P]olitical subdivisions are liable for injury, death, or loss to person or
property caused by their negligent failure to keep public roads in repair and other
negligent failure to remove obstructions from public roads * * *.” Relevant here,
R.C. 2744.01(H) defines “public roads” to mean “public roads, highways, streets,
avenues, alleys, and bridges within a political subdivision. ‘Public roads’ does not
include berms, shoulders, rights-of-way, or traffic control devices unless the traffic
control devices are mandated by the Ohio manual of uniform traffic control
devices.”
{¶ 18} The parties do not dispute that the Ohio Manual of Uniform Traffic
Control Devices required a stop sign on Sanderson Avenue at 12th Street and that
the stop sign at issue here is therefore part of the public road.
Keeping Public Roads “in Repair”
{¶ 19} Pursuant to R.C. 2744.02(B)(3), the city may be held liable for
injuries caused by its negligent failure to keep public roads “in repair.” The statute
does not define the phrase “in repair,” and we construe it according to its common
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usage. R.C. 1.42. In this context, the word “repair” means “the state of being in
good or sound condition.” Webster’s Third New International Dictionary 1923
(2002). See also Sanderbeck v. Medina Cty., 130 Ohio St.3d 175, 2011-Ohio-4676,
956 N.E.2d 832, ¶ 14 (O’Donnell, J., dissenting) (“The plain meaning of the word
‘repair’ is ‘to put back in good condition after damage [or] decay.’ Webster’s New
World College Dictionary (4th Ed.2000) 1214”). And construing a statute
imposing a duty on county commissioners to keep roads and bridges “in proper
repair” in Heckert, we explained that this language created “a duty on the
commissioners only in matters concerning either the deterioration or disassembly
of county roads and bridges.” 15 Ohio St.3d at 406, 473 N.E.2d 1204. The court
noted that the duty to keep roads in repair did not extend to “matters unrelated to
actual roadway conditions,” such as tree limbs overhanging a county road. Id. at
407.
{¶ 20} Accordingly, whether a stop sign is in repair depends on its physical
condition, and nothing in R.C. 2744.02(B)(3) supports the appellate court’s holding
that a traffic-control device is not in repair when it “no longer serves its purpose”
due to “some extraneous factor.” 2016-Ohio-8097, 75 N.E.3d 779, at ¶ 22. An
extraneous factor is by definition something “outside or beyond” the public road.
Webster’s Third New International Dictionary 807 (2002) (defining “extraneous”).
Had the General Assembly intended to impose liability for something extraneous
to the public road (such as foliage along it), it could have done so expressly. It did
not, and a court may not rewrite the plain and unambiguous language of a statute
under the guise of statutory interpretation. Doe v. Marlington Local School Dist.
Bd. of Edn., 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, ¶ 29.
{¶ 21} Here, there is no showing that the stop sign was not in good or sound
condition or that it was otherwise deteriorated or disassembled. In fact, the only
conclusion that may be drawn from the evidence in the record, which includes
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photographs of the stop sign from different angles, is that the sign was in repair at
the time of the accident.
{¶ 22} Accordingly, the city was entitled to summary judgment on claims
that it negligently failed to keep the public road in repair.
Removing Obstructions from Public Roads
{¶ 23} The city may also be held liable for injury caused by the “negligent
failure to remove obstructions from public roads.” R.C. 2744.02(B)(3).
{¶ 24} The General Assembly enacted the current version of R.C.
2744.02(B)(3) to supersede decisions from this court construing the prior version
of the statute as providing an exception to immunity for conditions that were “not
actually on the roadway.” Howard, 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d
311, at ¶ 27-28. Those decisions, for instance, had interpreted earlier language
creating liability for a political subdivision’s failure to keep a roadway “free from
nuisance” to mean that there was a duty to remedy conditions such as a defective
tree limb threatening to fall on a roadway, Harp v. Cleveland Hts., 87 Ohio St.3d
506, 721 N.E.2d 1020 (2000), or crops growing alongside a road and obstructing
the view of approaching traffic, Manufacturer’s Natl. Bank of Detroit v. Erie Cty.
Road Comm., 63 Ohio St.3d 318, 587 N.E.2d 819 (1992). We recognized in
Howard that in revising the statute, the legislature had used language “that focused
solely on the roadway itself” and sought “to limit political-subdivision liability for
roadway injuries and deaths.” Howard at ¶ 29. We therefore concluded in Howard
that the duty “to remove obstructions from public roads” under R.C. 2744.02(B)(3)
extends only to “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.” Id. at ¶ 30.
{¶ 25} We adhere to our holding in Howard explaining what an obstruction
is. But that definition, standing alone, does not resolve the question here: When
does a political subdivision have a duty to remove a potential obstruction from a
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mandatory traffic-control device that is part of the public road? Accordingly,
although the parties focus on the meaning of the term “obstructions” as we
construed it in Howard, that word must be read in the context of the whole provision
creating the duty to remove obstructions from public roads. See R.C. 1.42;
D.A.B.E., Inc. v. Toledo–Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-
4172, 773 N.E.2d 536, ¶ 19 (“all words [in a statute] should have effect and no part
should be disregarded”).
{¶ 26} Because the statute does not define the word “from,” we construe it
according to its common usage. R.C. 1.42. In this context, the word “from” is
“used as a function word to indicate the source or original or moving force of
something: as * * * (4) the place of origin, source, or derivation of a material or
immaterial thing * * * * * *.” Webster’s Third
New International Dictionary 913 (3d Ed.2002). As the United States Court of
Appeals for the D.C. Circuit has noted, “one who states that a man ‘took a dime
[from] his pocket’ could only be understood to mean that the dime originated from
a specific location on a specific person.” Natl. Assn. of Clean Water Agencies v.
Environmental Protection Agency, 734 F.3d 1115, 1125 (D.C.Cir.2013).
{¶ 27} The duty to “remove obstructions from public roads” therefore
indicates that the obstruction must originate in a specific location: the public road.
And because the word “from” denotes a specific place, it cannot refer to conditions
that are only near or in the vicinity of public roads. See State v. Swidas, 133 Ohio
St.3d 460, 2012-Ohio-4638, 979 N.E.2d 254, ¶ 20. Rather, a political subdivision
has a duty to remove obstructions that are on public roads, and pursuant to the
statutory definition of “public roads,” that includes only obstructions that are on a
roadway, on a bridge, or on a mandated traffic-control device.
{¶ 28} For this reason, although a political subdivision is not immune from
liability for the negligent failure to remove an obstruction from a stop sign
mandated by the Ohio Manual of Uniform Traffic Control Devices, R.C.
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2744.02(B)(3) creates no duty to remove foliage from the devil strip when it is 34
feet, two inches in front of the stop sign and not on the sign itself. Because foliage
cannot be removed from a stop sign if it is not on the stop sign, the exception to
immunity provided by R.C. 2744.02(B)(3) does not apply.
{¶ 29} The General Assembly could have imposed a general duty on
political subdivisions to maintain the vegetation along public roads, yet it chose not
to do so, and it specifically excluded the devil strip from the definition of the term
“public road.” See R.C. 2744.01(H) (excluding berms, shoulders, and rights-of-
way from the definition of “public roads”); Baker v. Wayne Cty., 147 Ohio St.3d
51, 2016-Ohio-1566, 60 N.E.3d 1214, ¶ 23 (plurality opinion) (“when Baker’s tire
traveled off the edge of the pavement, it left the public road and dropped onto the
berm or shoulder”). As we recognized in Howard, the enactment of the current
version of R.C. 2744.02(B)(3) abrogated our holdings that political subdivisions
have a duty to maintain vegetation growing above or alongside a roadway that may
hinder the view of approaching traffic. Howard, 119 Ohio St.3d 1, 2008-Ohio-
2792, 891 N.E.2d 311, at ¶ 27-29, citing, e.g., Manufacturer’s Natl. Bank of Detroit,
63 Ohio St.3d at 322-323, 587 N.E.2d 819. We may not reinstate that duty by
judicial fiat. Accord Neal-Pettit v. Lahman, 125 Ohio St.3d 327, 2010-Ohio-1829,
928 N.E.2d 421, ¶ 22 (“The General Assembly chose not to mention attorney fees
when it drafted the statute, and we decline to add them”).
{¶ 30} The city was therefore entitled to summary judgment on claims
alleging that it negligently failed to remove an obstruction from a public road.
Conclusion
{¶ 31} The General Assembly, the arbiter of public policy in Ohio, has
acted “to limit political-subdivision liability for roadway injuries and deaths,”
Howard, 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, at ¶ 29, with a
purpose to preserve “ ‘the fiscal integrity of political subdivisions,’ ” Hubbell v.
Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 23, quoting Wilson
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v. Stark Cty. Dept. of Human Servs., 70 Ohio St.3d 450, 453, 639 N.E.2d 105(1994). And it did so, in part, by limiting a political subdivision’s liability for
regulating, maintaining, and repairing public roads to the negligent failure to keep
them in repair and to remove obstructions from them.
{¶ 32} Rather than second-guess the policy decisions of the legislative
branch, “[o]ur role, in exercise of the judicial power granted to us by the
Constitution, is to interpret and apply the law enacted by the General Assembly.”
Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-
5685, 983 N.E.2d 1253, ¶ 29. And because R.C. 2744.02(B)(3) is unambiguous,
we must simply apply its plain meaning here.
{¶ 33} In this case, the stop sign was in repair, because it was in good or
sound condition and was not deteriorated or disassembled. And because the foliage
was not on the stop sign, the city had no obligation to remove it from the devil strip.
No genuine issues of material fact remain, the city is immune from liability, and
the trial and appellate courts erred in failing to render judgment in its favor.
{¶ 34} Accordingly, we reverse the judgment of the Seventh District Court
of Appeals and remand the matter to the trial court for it to dismiss the claims
against the city.
Judgment reversed
and cause remanded.
O’DONNELL, FRENCH, FISCHER, and DEWINE, JJ., concur.
O’CONNOR, C.J., concurs in part and dissents in part, with an opinion joined
by HARSHA, J.
WILLIAM H. HARSHA, J., of the Fourth District Court of Appeals, sitting for
DEGENARO, J.
_________________
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O’CONNOR, C.J., concurring in part and dissenting in part.
{¶ 35} I agree with the majority that appellee, Judith Pelletier, failed to
establish that the stop sign on Sanderson Avenue at 12th Street in Campbell was
not in good repair on August 26, 2013, and I concur that appellant, the city of
Campbell, was entitled to summary judgment on the claim that it negligently failed
to keep the public road in repair. However, I disagree with the majority’s
interpretation of the exception to immunity that applies when an injury is caused
by a political subdivision’s “negligent failure to remove obstructions from public
roads,” R.C. 2744.02(B)(3).
{¶ 36} The General Assembly amended R.C. 2744.02(B)(3) in 2002. Prior
to its amendment, the statute created an exception to immunity for political
subdivisions for injuries “caused by their failure to keep public roads * * * in repair,
and free from nuisance.” Am.Sub.S.B. No. 106, 149 Ohio Laws, Part II, 3500,
3508. After its amendment, the statute limits liability to injuries “caused by [a
political subdivision’s] negligent failure to keep public roads in repair and other
negligent failure to remove obstructions from public roads.” Id. The application
of this amended language to a case involving an allegedly obstructed stop sign is a
question of first impression for this court.
{¶ 37} In holding that the city is entitled to summary judgment on the
question of its liability for negligently failing to remove an obstruction from the
public road, the majority focuses almost exclusively on the meaning of the word
“from,” and barely considers the word “obstruction.” The definition of
“obstruction” is “something that obstructs or impedes” or “a condition of being
clogged or blocked.” Webster’s Third New International Dictionary 1559 (2002).
The definition of “obstruct” is “to be or come in the way of.” Id.{¶ 38} The majority interprets the statute to require a plaintiff to establish
that an obstruction is “on” a traffic-control device in order to create a risk of
liability, but there is no question that an object can obstruct or block a traffic-control
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device without literally being on it. The majority effectively rewrites the statute by
interpreting the word “from” to mean “on” based on a single definition of the word
“from” that the majority selects out of multiple offerings in a dictionary.
{¶ 39} Importantly, if the General Assembly had intended the immunity
exception to exist only when an obstruction was “on” a public road, it could have
used the word “on” instead of “from.” It did not.
{¶ 40} The majority analogizes the removing of an obstruction “from” a
stop sign to the act of taking a dime “from” a pocket, but deciding the case based
on this definition simply does not make sense. Interpreting the statute to require
that the obstacle literally touch the traffic-control device nearly eliminates blocked
traffic-control devices from the liability exception because of the low likelihood
that a traffic-control device will have an obstruction physically on it. But in
“enacting a statute, it is presumed that * * * [t]he entire statute is intended to be
effective.” R.C. 1.47(B). Consequently, we should not adopt a strained reading
that unduly limits the statute’s effectiveness.
{¶ 41} A simple example highlights the shortcomings of the majority’s
analysis. Every driver in Ohio is concerned with the practical question whether a
stop sign can be seen clearly from the road. From the perspective of a driver, it
does not matter whether foliage touching a stop sign renders it unviewable or
whether a tree growing two feet in front of it, but not touching it, does. Either way,
the sign is impossible to see—thereby creating a dangerous situation. The majority,
however, is not concerned with this practical reality faced by drivers across Ohio.
It believes there is a difference between obstructing a stop sign with foliage from a
tree planted two feet away and not touching it and foliage from a tree planted two
feet away and actually touching it—even if under both scenarios, the stop sign is
equally obstructed.
{¶ 42} We previously concluded that the General Assembly “used the word
‘obstructions’ in a deliberate effort to impose a condition more demanding than a
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showing of ‘nuisance’ in order for a plaintiff to establish an exception to
immunity.” Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 2008-Ohio-2792,
891 N.E.2d 311, ¶ 29. In Howard, we considered whether ice on a roadway was
an obstruction. Id. at ¶ 15-17. We concluded that “an ‘obstruction’ must be 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.”
Id. at ¶ 30. Because “public roads” includes the traffic-control device at issue in
this case, it is appropriate to replace “roadway” as used in Howard with “stop
sign.”1 The result is that an “obstruction” must be an obstacle that blocks the stop
sign and not merely a thing or condition that hinders or impedes the use of the stop
sign or that may have the potential to do so.
{¶ 43} The majority’s narrow interpretation of “from” is also incompatible
with the testimony legislators heard prior to voting on the 2002 amendments that
added the words “negligent failure to remove obstructions from public roads” to
R.C. 2744.02(B)(3). Representative Jay Hottinger assured legislators at the bill’s
first hearing in the House that “if there is negligence involved, there are
consequences and liability and the political subdivision may be sued.”
Representative Jay Hottinger, Sponsor Testimony, House Local Government and
Townships Committee, Meeting Report, Hannah Capitol Connection (Jan. 23,
2002). According to Representative Hottinger, under the pre-amendment statute,
political subdivisions were liable for “any” failure to remove obstructions from the
roadway, and the intent of the amendment was to limit the liability of political
subdivisions to “negligent” failures to remove roadway obstructions. Id. And Mark
1
In Howard, we mistakenly stated that Am.Sub.S.B. No. 106, 149 Ohio Laws, Part II, 3500, “also
limited the definition of ‘public roads’ from a more expansive reading that included ‘berms,
shoulders, rights-of-way, or traffic control devices’ to one that focused solely on the roadway itself,”
119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, at ¶ 29. In fact, although that legislation limited
the definition of “public roads,” that definition still includes “traffic control devices” that “are
mandated by the Ohio manual of uniform traffic control devices.” R.C. 2744.01(H).
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January Term, 2018
Landes, an attorney testifying on behalf of the County Commissioner’s
Association, stated at a Senate committee hearing that the section of the bill
pertaining to roadway liability would not change the law substantially but would
make it much clearer with the addition of the term “negligence.” Mark Landes,
Testimony on Behalf of the County Commissioner’s Association, Senate State and
Local Government and Veterans Affairs Committee, Meeting Report, Hannah
Capitol Connection (June 6, 2001).
{¶ 44} It is evident, based on this testimony and our own precedent, that the
General Assembly’s two key motivations in amending the law were to avoid
liability for lawsuits brought against political subdivisions for nuisances rather than
true obstructions and to provide immunity to political subdivisions that had not
been at least negligent in failing to remove obstructions. As evidenced by the
General Assembly’s decision to continue including certain traffic-control devices
in the definition of “public roads,” the 2002 amendments did not eliminate liability
for a city’s negligent failure to remove obstacles obstructing mandatory stop signs,
and there is no evidence that legislators intended to add a requirement that the
obstacle be touching the public road.
{¶ 45} As we did in Howard, this court should focus its inquiry on whether
the public road (in this case, the stop sign) is blocked in a way that renders the stop
sign wholly unserviceable, not merely more difficult to see. Accordingly, to the
extent that an obstacle is actually blocking a traffic-control device from the view of
a driver at all distances in which it would be effective, I would hold that a political
subdivision may be liable for negligently failing to remove the obstruction,
pursuant to R.C. 2744.02(B)(3).
{¶ 46} This court did not accept a proposition of law asserting that the city
of Campbell was entitled to immunity under this clarified standard. But contrary
to the decisions of the trial and appellate courts below, I would conclude that the
trial court, not the jury, is responsible for resolving the immunity question. See
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SUPREME COURT OF OHIO
Conley v. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992), quoting Roe v.
Hamilton Cty. Dept. of Human Servs., 53 Ohio App.3d 120, 126, 560 N.E.2d 238(1st Dist.1988) (“ ‘Whether immunity may be invoked is a purely legal issue,
properly determined by the court prior to trial’ ”). That it is necessary to consider
the facts in order to determine whether the city negligently failed to remove an
obstruction does not transform the immunity question into one that cannot be
answered by the court. See O’Day v. Webb, 29 Ohio St.2d 215, 219, 280 N.E.2d
896 (1972) (“the fact that a question of law involves a consideration of the facts or
the evidence does not turn it into a question of fact”). Accordingly, I would remand
the case to the trial court for further proceedings. I dissent in part.
HARSHA, J., concurs in the foregoing opinion.
_________________
Rossi & Rossi and Gregg A. Rossi, for appellee.
Baker, Dublikar, Beck, Wiley & Mathews, Gregory A. Beck, James F.
Mathews, and Tonya J. Rogers, for appellant.
Giorgianni Law, L.L.C., and Paul Giorgianni, urging affirmance for amicus
curiae Ohio Association for Justice.
Brosius, Johnson & Griggs, L.L.C., Peter N. Griggs, Donald F. Brosius, and
Jennifer L. Huber, urging reversal for amici curiae Ohio Township Association and
Coalition of Large Ohio Urban Townships.
Collins, Roche, Utley & Garner, L.L.C., and Kurt D. Anderson, urging
reversal for amicus curiae Ohio Association of Civil Trial Attorneys.
Isaac, Wiles, Burkholder & Teetor, L.L.C., Mark Landes, Andrew N.
Yosowitz, and Shawn K. Judge, urging reversal for amici curiae County
Commissioners Association of Ohio, Ohio Municipal League, and County
Engineers Association of Ohio.
Joseph Martuccio, Canton Law Director, and Kevin R. L’Hommedieu,
Chief Counsel, urging reversal for amicus curiae city of Canton.
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January Term, 2018
Andrea Scassa, Massillon Law Director, urging reversal for amicus curiae
city of Massillon.
Jennifer L. Arnold, Alliance Law Director, urging reversal for amicus
curiae city of Alliance.
_________________
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