Bibler v. Stevenson (Slip Opinion) ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Bibler v. Stevenson, Slip Opinion No. 2016-Ohio-8449.]
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. 2016-OHIO-8449BIBLER ET AL., APPELLANTS, v. STEVENSON ET AL.; THE CITY OF FINDLAY,
APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Bibler v. Stevenson, Slip Opinion No. 2016-Ohio-8449.]
Sovereign immunity—R.C. 2744.02(B)(3)—Exception for negligent failure to keep
public roads in repair—Stop sign allegedly obscured by tree foliage—R.C.
2744.01(H)—Definition of “public roads” includes traffic-control devices
mandated by Ohio Manual of Uniform Traffic Control Devices—R.C.
4511.65—Mandatory erection of stop signs and other traffic-control
devices by local authorities at roads that intersect with through highways—
Municipality is not immune—Court of appeals’ judgment reversed and
cause remanded.
(No. 2015-1737—Submitted August 31, 2016—Decided December 29, 2016.)
APPEAL from the Court of Appeals for Hancock County,
No. 5-14-29, 2015-Ohio-3717.
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SUPREME COURT OF OHIO
PFEIFER, J.
I. Background
{¶ 1} In May 2011, Jill Stevenson failed to stop at a stop sign at the
intersection of Wilson Street and East Sandusky Street in Findlay. She collided
with appellant Gary Bibler, who had the right-of-way while traveling on East
Sandusky Street, which is a state through highway. Stevenson claims that she did
not see the stop sign because it was blocked by tree foliage. An officer with the
Findlay Police Department investigated and determined that the sign was
significantly obstructed from a distance as a driver approached it.
{¶ 2} Bibler and his wife, Yvonne Bibler, filed a complaint alleging that
Stevenson was negligent for failing to stop and that appellee, the city of Findlay,
was negligent for failing to ensure that the stop sign was visible. In ruling on
Findlay’s motion for summary judgment, the trial court concluded that Findlay was
entitled to statutory political-subdivision immunity and that the Biblers had not
established that an exception to immunity applies. Accordingly, the court
dismissed Findlay from the case. Subsequently, the Biblers and Stevenson settled
the claims against her.
{¶ 3} The Biblers appealed the grant of summary judgment in favor of
Findlay, asserting that Findlay was not immune from liability. The court of appeals
disagreed in a split decision, stating the “narrow question” as “whether the stop sign
in this case is considered a ‘public road’ for the purposes of sovereign immunity”
and concluding that “the answer is no.” 2015-Ohio-3717, 38 N.E.3d 952, ¶ 30 (3d
Dist.).
{¶ 4} We accepted the Biblers’ discretionary appeal. 144 Ohio St.3d 1504,
2016-Ohio-652, 45 N.E.2d 1049.
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II. Analysis
A. R.C. Chapter 2744 and related definitions
{¶ 5} R.C. Chapter 2744 sets forth the circumstances under which political
subdivisions, acting through their employees, are susceptible to suit in tort.
{¶ 6} R.C. 2744.02(B)(3), as relevant to this case, states that “political
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 * * *.” This is the only statute under which
the Biblers assert that Findlay is liable.
{¶ 7} R.C. 4511.01(QQ) defines “[t]raffic control device” as a “sign, signal,
marking, or other device used to regulate, warn, or guide traffic, placed on, over, or
adjacent to a street * * * by authority of a public agency or official having
jurisdiction * * *.” Under this provision, a stop sign is a traffic-control device.
{¶ 8} R.C. 2744.01(H) defines “[p]ublic roads” as “public roads, highways,
streets, avenues, alleys, and bridges within a political subdivision.” R.C.
2744.01(H) also states that “[p]ublic roads” do 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.” This provision
clearly demarcates the central issue: the stop sign falls outside the definition of a
public road unless it is “mandated by the Ohio manual of uniform traffic control
devices” (“OMUTCD”).
{¶ 9} R.C. 4511.65(A) states that “stop signs, yield signs, or traffic control
signals shall be erected at all intersections with * * * through highways * * * by
local authorities as to highways under their jurisdiction * * *.” This provision is
part of the Revised Code, it is not part of the OMUTCD.
B. When is a traffic-control device mandated?
{¶ 10} Based on the statutory scheme governing this case, Findlay is
immune from liability unless it negligently failed to keep a public road in repair.
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R.C. 2744.02(B)(3). No other basis for Findlay’s potential liability has been
proffered.
{¶ 11} We believe that the court of appeals properly focused on whether the
traffic-control device at issue, a stop sign, was mandated. The only aspect of the
public road that is in question is the stop sign. Pursuant to R.C. 2744.01(H), a stop
sign is excluded from the definition of a public road unless it is mandated by the
OMUTCD.
{¶ 12} The court of appeals correctly determined that a stop sign was
mandated at the intersection by R.C. 4511.65. East Sandusky Street in Findlay is
also State Route 586. Neither party disputes that East Sandusky Street is a state
through highway nor that Findlay is responsible for the traffic-control devices used
at the intersection of East Sandusky Street and Wilson Street. R.C. 4511.65(C)
states that local authorities need not erect a stop sign at a through-highway
intersection if the intersection is constructed “to permit traffic to safely enter a
through highway without coming to a stop.” The intersection in this case has a stop
sign on Wilson Street.
{¶ 13} R.C. 4511.11(A) provides:
Local authorities in their respective jurisdictions shall place
and maintain traffic control devices in accordance with the
department of transportation manual of uniform system of traffic
control devices, adopted under section 4511.09 of the Revised Code,
upon highways under their jurisdiction as are necessary to indicate
and to carry out section 4511.01 to 4511.76 and 4511.99 of the
Revised Code, local traffic ordinances, or to regulate, warn, or guide
traffic.
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{¶ 14} However essential stop signs are to safety and efficiency, we do not
disagree with the statement made by the court of appeals in that case that nothing
in the version of the OMUTCD that was in place when the accident occurred
specifically and affirmatively indicated that the erection of any stop sign is ever
mandatory. See, e.g., OMUTCD Section 2B.05 (2005 Ed., Revision 2) (stating that
stop signs “should” be used in certain situations). To be blunt, we would consider
this omission indefensible but for R.C. 4511.65(A) and 4511.11(A), which clearly
contemplate the mandatory nature of stop signs or other traffic-control devices at
intersections involving through highways. (“Through highways” are not defined in
the OMUTCD; they are defined in R.C. 4511.65(A).)
{¶ 15} The OMUTCD does not exist in a vacuum. It is a creature of the
Revised Code, it is subservient to the Revised Code, and it necessarily incorporates
the Revised Code. Its drafters were, of course, aware of the mandatory language
of R.C. 4511.65(A) and knew that it relates to the application and placement of stop
signs. In fact, Section 2B.05 of the version of the OMUTCD at issue in this case,
titled “STOP Sign Applications” (capitalization sic), specifically refers to R.C.
4511.65 and also refers to an appendix to the OMUTCD that contains the full text
of that statute. That the relevant version of the OMUTCD did not explicitly state
that the placement of stop signs at intersections involving through highways is
mandated does not cause R.C. 4511.65 to disappear or somehow become other than
mandatory. (Although we focus on “stop signs” because a stop sign is the key
factor in this case, R.C. 4511.65(A) refers to “stop signs, yield signs, [and] traffic
control signals.”)
{¶ 16} The OMUTCD cannot override the clear mandates of a provision of
the Revised Code. Instead, its drafters are authorized and obligated to carry out the
requirements of “section 4511.01 to 4511.76 and 4511.99 of the Revised Code.”
R.C. 4511.11(A). One of the requirements of R.C. 4511.01 through 4511.76 is the
requirement in R.C. 4511.65(A) for the mandatory erection of stop signs (or some
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other traffic-control device) at intersections involving through highways, subject to
certain limited exceptions that are not applicable here.
{¶ 17} That the version of the OMUTCD at issue in this case mistakenly,
inadvertently, or intentionally did not precisely align with the language of R.C.
4511.65 when discussing the application and placement of stop signs does not mean
that the stop sign in question was not mandated. Clearly it was. R.C. 4511.65(A).
Because the stop sign was mandated, it is not excluded from the definition of a
public road with respect to R.C. 2744.02(B)(3).
{¶ 18} The OMUTCD is simply the format by which authorities in political
subdivisions are made aware of how to comply with statutes, it does not undermine
the underlying empowering statutes. How could it? Its drafters have only the
authority that was delegated to them, which is to carry out the requirements of R.C.
4511.65 along with many other statutory provisions.
C. Summary judgment
{¶ 19} This case was decided on a motion for summary judgment.
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.”
M.H. v. Cuyahoga Falls, 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), citing Civ.R. 56(C).
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{¶ 20} Viewing the evidence most strongly in favor of the Biblers in light
of the legal principles applicable to this case, it is apparent that Findlay has not
established that it is entitled to judgment as a matter of law regarding its immunity
and that reasonable minds could not come to the singular conclusion that Findlay
is not liable. The stop sign in this case falls within the definition of a public road,
and the accident allegedly occurred because the stop sign was not in repair and was
obstructed. Accordingly, we conclude that Findlay is not immune pursuant to R.C.
2744.02(B)(3) and is potentially amenable to liability.
III. Conclusion
{¶ 21} We conclude that Findlay is not immune. We express no opinion
about whether Findlay is liable.
{¶ 22} We reverse the judgment of the court of appeals and remand the
cause to the trial court for further proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and O’NEILL, JJ., concur.
O’DONNELL, J., concurs in judgment only.
LANZINGER, J., dissents, with an opinion joined by KENNEDY and FRENCH,
JJ.
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LANZINGER, J., dissenting.
{¶ 23} This case presents a concrete example of how statutory immunity
functions in Ohio. Appellants, Gary and Yvonne Bibler, ask us to read R.C.
Chapter 4511, which establishes traffic laws related to the operation of motor
vehicles, and R.C. Chapter 2744, which sets forth the tort liability of political
subdivisions, as an interrelated body of law. The lead opinion adopts this position.
But the scope of a political subdivision’s statutory duties is separate from and
independent of its tort liability.
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{¶ 24} The default position in R.C. Chapter 2744 is that political
subdivisions are immune from liability and that they are liable only when the
circumstances fall under one of the exceptions enumerated in that chapter of the
Revised Code. In previously considering R.C. 2744.02(B)(3), we have recognized
that the General Assembly’s intent in amending the statute “was not whimsy but a
deliberate effort to limit political subdivisions’ liability for injuries and deaths on
their roadways.” Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 2008-Ohio-
2792, 891 N.E.2d 311, ¶ 26. We must accordingly apply the exceptions to statutory
immunity that the General Assembly has specified in R.C. 2744.02(B) strictly as
written.
{¶ 25} R.C. 2744.02(B)(3), subject to a limited exception that is
inapplicable here, provides that “political 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.”
R.C. 2744.01(H) specifies that “ ‘[p]ublic 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.” (Emphasis
added.) Thus, mandatory traffic-control devices that are negligently maintained
may remove a political subdivision’s immunity and cause it to be subject to liability
only when the terms of R.C. 2744.01(H) are met.
{¶ 26} In the version of the Ohio Manual of Uniform Traffic Control
Devices (“the Manual”) effective at the time of the accident in this case, Section
2B.05 provided:
STOP signs should be used if engineering judgment indicates
that one or more of the following conditions exist:
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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 intersection in a signalized area; and/or
D. High speeds, restricted view, or crash records indicate a
need for control by the STOP sign.
(Capitalization sic; emphasis added.) This is not mandatory language. Unlike other
portions of the Manual that use the word “shall,” this section uses the permissive,
nonmandatory “should” for the instruction on the installation of stop signs as
presented by this case’s factual scenario. The Manual does not mandate the use of
a stop sign in this situation. Thus, as an unmandated traffic-control device, a stop
sign is not within R.C. 2744.01(H)’s definition of a public road. There accordingly
is no exception to immunity under R.C. 2744.02(B)(3), and the city of Findlay is
not liable.
{¶ 27} The lead opinion concludes that traffic-control devices required by
R.C. 4511.65(A) are not excluded from the definition of a public road under R.C.
2744.01(H). Lead opinion at ¶ 11. But R.C. 2744.01(H) incorporates only the
Manual into its definition of public roads. It does not incorporate R.C. 4511.65.1
Therefore, regardless of whether the lead opinion is correct that R.C. 4511.65(A)
1
While the duties of appellee, the city of Findlay, under R.C. 4511.65 should not be relevant to the
immunity analysis, the city argues that “R.C. 4511.65 does not mandate the installation or
maintenance of traffic control devices” but instead “provides the manner in which a state route
becomes designated as a through highway.” The city also notes that R.C. 4511.65(A) allows the
director of the Ohio Department of Transportation to omit stop signs on roadways intersecting with
through highways under the director’s jurisdiction when “circumstances warrant” and argues that
this provision means that under R.C. 4511.65, a stop sign can never be considered to be “mandated.”
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mandated that the city erect a stop sign at the intersection at issue here, the existence
of that statutory duty cannot trigger tort liability. Indeed, R.C. 2744.02(B)(5)
specifies that “[c]ivil liability shall not be construed to exist under another section
of the Revised Code merely because that section imposes a responsibility or
mandatory duty upon a political subdivision * * *.” For liability to exist, the
exception to immunity must be enunciated in R.C. Chapter 2744. The General
Assembly has not done so in this regard.
{¶ 28} While some may argue that it is counterintuitive for one section of
the Revised Code to impose a mandatory duty upon a political subdivision while
another section appears to allow the political subdivision to fail in that duty with
impunity, this is the choice the General Assembly has made. Because the stop sign
here is excluded from R.C. 2744.01(H)’s definition of public roads, R.C.
2744.02(B)(3) does not apply.
{¶ 29} I respectfully dissent from the court’s decision and would affirm the
judgment of the Third District Court of Appeals.
KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
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Drake, Phillips, Kuenzli & Clark, William E. Clark, and Zachary J. Barger,
for appellants.
Donald Rasmussen, Findlay Law Director; and Allain Legal, Ltd., Eric M.
Allain, and William F. Schmitz, for appellee.
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