Becker v. Shaull ( 1990 )

SMART, J.

This is an appeal from a judgment of the Court of Common Pleas of Richland County, Ohio, entered on a jury verdict in favor of defendants-appellees Thomas M. and Dorothy G. Henson (Hensons) and defendant-appellee Clayton Long (Long) and in favor of plaintiffs-appellants Walter C. and Roberta Becker (appellants); also against defendant Alice E. Shaull (Shaull) and in favor of appellants as to their cause of action against her. Only the portion of the judgment pertaining to the Hensons and Long is before us.

This cause arose out of an automobile accident. Shaull was headed west on Hanley Road in Mansfield when her auto slid out of control on a patch of ice in front of property owned by the Hensons. Appellant Walter Becker was travelling east on Hanley Road. Shaull's auto went across the center line and struck the appellant's auto head-on, causing him serious injuries. Appellants' complaint alleged that Shaull was negligent in failing to control her auto. It also alleged that the Hensons had negligently regraded their property some years previously, changing the contour of the land and filling a shallow ditch along Hanley Road. Appellants allege that this in turn diverted water run-off onto Hanley Road, causing the icy spot that Shaull hit.

At trial, the court refused to give eight jury instructions proposed by appellants. Those jury instructions pertain to negligence per se and nuisance regarding the alleged actions of the Hensons and Long, Long being the workman who did the regrading. The jury found Shaull liable, but not the Hensons or Long.

Appellants assign to errors to the trial court:

"ASSIGNMENT OF ERROR NO. I "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO GIVE AN INSTRUCTION TO THE JURY INDICATING THAT ONE WHO ALTERS, CONSTRUCTS OR GRADES HIS PREMISES WITHIN THE COUNTY RIGHT-OF-WAY SO AS TO ELIMINATE A PRE-EXISTING DITCH OR CAUSE A DIVERSION, DISCHARGE, OR ACCUMULATION OF WATER IN A PUBLIC WAY IS STRICTLY LIABLE TO THOSE INJURED BY SUCH RUNOFF IN THE USE OF SUCH PUBLIC WAY.

"ASSIGNMENT OF ERROR NO. II "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO GIVE AN INSTRUCTION TO THE JURY ON THE ISSUE OF NUISANCE WHEN THERE IS EVIDENCE THAT THE DEFENDANTS ENTERED INTO THE PUBLIC RIGHT-OF-WAY AND CHANGED A PRE-EXISTING DITCH, CAUSING WATER RUN-OFF ONTO THE ROADWAY WHICH SUBSEQUENTLY FROZE AND RESULTED IN INJURIES TO THE PLAINTIFF."

R.C. 5589.06 states:

"No person shall wrongfully obstruct any ditch, drain, or watercourse along, upon, or across a public highway, or divert any water from adjacent lands to or upon a public highway."

R.C. 5589.06 is a criminal statute; the violation being a minor misdemeanor.

The Hensons and Long cite the case of Savransky v. Cleveland (1983), 4 Ohio St.3d 118. In dicta, the Supreme Court said that R.C. 5589.01 is not a basis for recovering damages in a civil suit. We find Savransky distinguishable

In Savransky, plaintiffs decedent was murdered by an armed robber on a pedestrian walkway in Cleveland. The walkway was partly hidden from view by a parking ramp owned by a private partnership. The ramp encroached some fourteen feet and had been built pursuant to a city permit and ordnance. Plaintiff sought to recover from the owner of the ramp, and from the city, arguing that the ramp was a nuisance because it made crimes easier to commit. The Supreme Court approved the judgment entered in favor of the city on the basis that the statute in question did not give plaintiff a basis for recovering in a civil suit. The Supreme Court also held that R.C. 723.01, the nuisance statute; was not enacted to reduce crime

Here, appellants do not seek to hold any public officials liable for failing to enforce R.C. 5589.06. Rather, they attempt to hold those persons who allegedly violated the statute accountable for the damage their violation directly caused. See, e.g., Capelle v. Baltimore & Ohio Railroad Co. (1940), 136 Ohio St. 203, where the Supreme Court held that General Code, Section 7472 (now R.C. 5589.21), prohibiting obstruction of roads by railroads, was enacted to facilitate the movement of traffic and to discourage unnecessary blockades. Damages directly attributable to delay may be recovered, Capelle, at 208, although negligence per se is not available if the negligence was not the proximate cause of the damage. Id. We recognize that R.C. 5589.22 expressly authorizes recovery for damages for violation of R.C. 5589.21.

We find that R.C. 5589.01 et seq. were enacted to facilitate the safe movement of traffic on thoroughfares. Specifically, R.C. 5589.06 was enacted to prevent diversion of water onto a highway, with all its attended hazards, including the accumulation of unnatural patches of ice. If appellants succeeded in convincing the jury' that Hensons and Long violated this criminal statute; and that the violation directly and proximately caused the appellants damages, then they were entitled to recover even if the jury did not find that the Hensons and Long were negligent in filling the ditch.

We follow the Supreme Court's ruling that the Ohio nuisance laws were not enacted in order to prevent crime, and that an encroachment is not necessarily a nuisance simply because its design gives shelter to criminals For this reason, we think that the plaintiffs theory of recovery in Savransky was just too attenuated. However, violations of R.C. 5589.01 have been held to constitute nuisances, see, e.g., Zanesville v. Fannon (1895), 53 Ohio St. 605. Here, where the statute was specifically enacted in order to prevent the accumulation of water on a highway, and where that statute was violated, creating the condition the statute was designed to prevent, then we find a prima facie case of nuisanc&The assignments of error are sustained.

For the foregoing reasons, the judgment of the Court of Common Pleas of Richland County, Ohio, is reversed and the cause is remanded to that court for further proceedings in accord with applicable law and not inconsistent with this opinion.

PUTMAN, P.J. concurs.