Mauntel v. Norwood

[Cite as Mauntel v. Norwood, 2018-Ohio-4756.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
MARIAH MAUNTEL, : APPEAL NO. C-170635
TRIAL NO. A-1504405
Plaintiff-Appellee, :
vs. :
O P I N I O N.
CITY OF NORWOOD, :
Defendant-Appellant, :
and :
DEBBIE SIMMONS, :
Defendant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: November 30, 2018
Beckman Weil Shepardson LLC and Stephanie M. Day, for Plaintiff-Appellee,
Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere and Kurt M. Irey,
for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
DETERS, Judge.
{¶1} Plaintiff-appellee Mariah Mauntel sustained an injury after stepping
on a concrete curb that crumbled underneath her. Mauntel sued defendant-
appellant the city of Norwood, Ohio, where the curb was located, and defendant
Debbie Simmons, Mauntel’s grandmother and owner of the property adjacent to the
curb. Norwood moved for summary judgment, arguing that it was immune from
liability under Ohio’s Political Subdivision Tort Liability Act. The trial court
overruled Norwood’s motion and Norwood appealed. Because we determine that the
curb upon which Mauntel sustained her injury is not a part of the public road for
purposes of avoiding political-subdivision immunity, we reverse the trial court’s
judgment.
I. INTRODUCTION
{¶2} According to Mauntel, in August of 2012, she and Simmons walked
towards Simmons’s van, which was parked on the street in front of Simmons’s house.
Mauntel walked carefully, looking down, as she carried her newborn son in an infant
carrier. Mauntel approached the concrete curb, and it appeared intact. When
Mauntel stepped on the curb with her left foot, the curb crumbled, and Mauntel’s
foot rolled underneath her. As she fell, Mauntel tried to protect her baby, and she
broke her foot.
{¶3} Mauntel filed a complaint against Simmons and Norwood, alleging
that they had negligently failed to maintain the roadway in front of Simmons’s home.
Norwood moved for summary judgment, claiming that: (1) it did not have notice
regarding the defective condition of the curb, so it could not be held liable in
negligence, and (2) it was entitled to the general grant of immunity as a political
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OHIO FIRST DISTRICT COURT OF APPEALS
subdivision under R.C. 2744.02(A)(1), and that the exception in R.C. 2744.02(B)(3)
did not apply, because a curb is not a part of the public road.
{¶4} Mauntel opposed Norwood’s motion. Mauntel argued that curbs are
an integral part of the public road, so that the exception to immunity applied. In
support of her argument, Mauntel attached an affidavit from H. Richard Hicks, an
engineer with experience in highway and street design. Hicks averred that curbs
serve several important functions on roadways, including protecting pedestrians by
separating vehicular traffic, discouraging drivers from parking on sidewalks and
lawns, providing structural supports to the streets, and channeling water into storm
drains. Mauntel also opposed Norwood’s assertion that it could not be held liable in
negligence.
{¶5} The trial court denied Norwood’s summary-judgment motion, holding
that the curb in this case is part of the public road and therefore the exception to
immunity in R.C. 2744.02(B)(3) applied. Norwood has appealed.
II. LAW AND ANALYSIS
A. Finality and Standard of Review
{¶6} In a single assignment of error, Norwood argues that the trial court
erred in denying Norwood’s motion for summary judgment.
{¶7} An appellate court’s jurisdiction is limited to review of final,
appealable orders. Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2505.02. R.C.
2744.02(C) provides: “An order that denies a political subdivision or an employee of
a political subdivision the benefit of an alleged immunity from liability as provided in
this chapter or any other provision of the law is a final order.” Applying R.C.
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OHIO FIRST DISTRICT COURT OF APPEALS
2744.02(C), the Ohio Supreme Court has determined that an order which denies a
political subdivision the benefit of alleged political-subdivision immunity is both
final and appealable. Hubbell v. City of Xenia, 115 Ohio St. 3d 77, 2007-Ohio-4839,
873 N.E.2d 878, syllabus. Because the order from which Norwood appeals denies
Norwood the benefit of political-subdivision immunity, that order is a final,
appealable order over which this court has jurisdiction.
{¶8} An order denying summary judgment to a political subdivision on
immunity grounds is reviewed de novo and governed by Civ.R. 56(C). Pelletier v.
City of Campbell, 153 Ohio St. 3d 611, 2018-Ohio-2121, 109 N.E.3d 1210. Under
Civ.R. 56(C), summary judgment is appropriate when (1) no genuine issues of
material fact exist; (2) the movant 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
when viewing evidence in favor of the nonmovant, and that conclusion is adverse to
the nonmovant. Grafton v. Ohio Edison Co., 77 Ohio St. 3d 102, 105, 671 N.E.2d 241
(1996).
B. Political-Subdivision Immunity and “Public Roads”
{¶9} R.C. Chapter 2744 governs political-subdivision immunity. In
determining whether immunity applies, courts apply a 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. [Greene Cty. Agricultural Soc. v.
Liming (2000), 89 Ohio St. 3d 551, 556-557, 733 N.E.2d
1141]; R.C. 2744.02(A)(1). However, that immunity is
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OHIO FIRST DISTRICT COURT OF APPEALS
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.
***
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 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.
Colbert v. Cleveland, 99 Ohio St. 3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7-9.
{¶10} The first tier of the immunity analysis provides a general grant of
immunity to political subdivisions performing governmental functions. R.C.
2744.02(A)(1) provides, “a political subdivision is not liable in damages in a civil
action for injury, death, or loss to person or property allegedly caused by any act or
omission of the political subdivision or an employee of the political subdivision in
connection with a governmental or proprietary function.” “Governmental function”
as used in R.C. Chapter 2744 includes, “[t]he regulation of the use of, and the
maintenance and repair of, roads, highways, streets, avenues, alleys, sidewalks,
bridges, aqueducts, viaducts, and public grounds[.]” R.C. 2744.01(C)(2)(e).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} There is no dispute that the city of Norwood is a political subdivision.
See R.C. 2744.01(F). Moreover, the parties do not dispute that the allegations in
Mauntel’s complaint involve the governmental function of maintaining and repairing
roadways. See R.C. 2744.01(C)(2)(e). Therefore, the analysis shifts to whether any
exceptions to immunity apply.
{¶12} R.C. 2744.02(B) lists exceptions to political-subdivision immunity.
Both parties agree that the only exception that could apply to Mauntel’s complaint is
R.C. 2744.02(B)(3). In relevant part, R.C. 2744.02(B)(3) 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 * * *.” The parties dispute whether Mauntel was
injured on a public road.
{¶13} R.C. 2744.01(H) provides “the exclusive definition” of “public roads”
as used in R.C. 2744.02(B)(3). Baker v. Wayne Cty., 147 Ohio St. 3d 51, 2016-Ohio-
1566, 60 N.E.3d 1214, ¶ 18. “ ‘Public roads’ means public roads, highways, streets,
avenues, alleys, and bridges within a political subdivision.” R.C. 2744.01(H).
“ ‘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.” Id. The undisputed facts indicate that Mauntel
sustained her injury on the curb. Therefore, we must decide whether the curb where
Mauntel sustained her injury is part of the public road to determine whether R.C.
2744.02(B)(3) applies.
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OHIO FIRST DISTRICT COURT OF APPEALS
C. Is the Curb Part of the Public Road?
{¶14} In determining whether the curb is part of the public road, the trial
court relied on a case cited by Mauntel, Heath v. City of Cleveland, 8th Dist.
Cuyahoga No. 65702, 1994 WL 372369 (July 14, 1994). In Heath, the plaintiff was
injured when she stepped on a broken curb, and she sued the city of Cleveland for
failing to repair the curb. Cleveland moved for summary judgment, asserting
political-subdivision immunity. At the time, former R.C. 2744.02(B)(3) stated:
“Political subdivisions are liable for injury, death, or loss to persons or property
caused by their failure to keep public roads, highways, streets, avenues, alleys,
sidewalks, bridges, aqueducts, viaducts, or public grounds within the political
subdivisions open, in repair, and free from nuisance * * *.”
{¶15} An employee of Cleveland’s service department testified that Cleveland
assumed responsibility for repairing curbs in areas near crosswalks. The trial court
determined that the curb at issue was located in the middle of the block, outside of a
crosswalk, therefore Cleveland owed no duty to keep the curb in repair under former
R.C. 2744.02(B)(3). Plaintiff appealed. The Eighth Appellate District determined
that the curb constituted part of the roadway and that the city of Cleveland had a
duty to “keep the curb free from nuisance even when the curb is located outside of a
crosswalk area.” Heath at *2. In reaching this conclusion, the Heath court relied on
an earlier case from its district, which held that the duty to keep streets in repair and
free from nuisance “does not change when the path is not an ‘ordinary travelled
way.’ ” Id., quoting Kelly v. Cleveland Elec. Illuminating Co., 8th Dist. Cuyahoga No.
59044, 1991 WL 263711 (Dec. 12, 1991).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} Almost ten years after Heath was decided, in April 2003, the
legislature amended R.C. 2744.02(B)(3) in pertinent part by removing “highways,
streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds
within the political subdivisions open,” leaving only “public roads[,]” and by
removing the “free from nuisance” language. The legislature also added R.C.
2744.01(H), defining “public roads” to exclude shoulders, berms, rights-of-way, or
traffic control devices, unless mandated by the Ohio manual of uniform traffic
control devices.
{¶17} In discussing the 2003 amendments to R.C. Chapter 2744, the Ohio
Supreme Court noted that the legislature’s amendment of R.C. 2744.02(B)(3) “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. In addition, the Supreme Court reasoned
that the adoption of R.C. 2744.01(H) demonstrated an effort by the legislature to
limit the definition of “public roads,” so as to focus “solely on the roadway itself.” Id.
at ¶ 29.
{¶18} The Ohio Supreme Court again confronted the public-roads exception
in Baker, 147 Ohio St. 3d 51, 2016-Ohio-1566, 60 N.E.3d 1214. The question before
the court in Baker was whether a four-to-five inch drop-off between the edge of the
paved road to the berm—the “edge drop”—was part of the public road under R.C.
2744.02(B)(3). In a plurality opinion, the court began by determining whether the
edge drop at the limit of the roadway is part of the “berm” or “shoulder.” The court
defined “berm” as “ ‘the shoulder of a road.’ ” Id. at ¶ 21, citing Lucchesi v. Fischer,
179 Ohio App. 3d 317, 2008-Ohio-5934, 901 N.E.2d 849 (12th Dist.), quoting
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OHIO FIRST DISTRICT COURT OF APPEALS
Webster’s Third New International Dictionary 206 (1993). The court defined
“shoulder” as “ ‘either edge of a roadway’ ” and “ ‘the part of a roadway outside of the
traveled way on which vehicles may be parked in an emergency.’ ” Baker, 147 Ohio
St.3d 51, 2016-Ohio-1566, 60 N.E.3d 1214, at ¶ 21, citing Lucchesi, quoting Webster’s
Third New International Dictionary 206 (1993). The court applied the plain
meaning of the words berm and shoulder to determine that the edge drop must be
considered part of the berm or shoulder and not the public road. Baker at ¶ 23.
{¶19} In this case, the curb is a vertical, raised concrete structure at the edge
of the paved road. Much like the Ohio Supreme Court determined that the edge drop
from the roadway to the berm is part of the berm or shoulder, and not part of the
public road, we determine that the raised edge or curb is part of the berm or shoulder
and not part of the public road. See id. at ¶ 21. Our holding is consistent with the
legislature’s limitation of the definition of “public roads” to “focus[] solely on the
roadway itself.” See Howard, 119 Ohio St. 3d 1, 2008-Ohio-2792, 891 N.E.2d 311, at
¶ 29; R.C. 2744.01(H).
{¶20} Because we determine that the curb upon which Mauntel sustained her
injury is not part of the “public roads” for purposes of the exception to political-
subdivision immunity in R.C. 2744.02(B)(3), the trial court erred in determining that
R.C. 2744.02(B)(3) applies.
III. CONCLUSION
{¶21} The parties agree that the city of Norwood is entitled to the general
grant of political-subdivision immunity under R.C. 2744.02(A)(1). Because the curb
is not part of the “public roads” for purposes of the exception to political-subdivision
immunity in R.C. 2744.02(B)(3), and the parties agree that no other exception to
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OHIO FIRST DISTRICT COURT OF APPEALS
immunity applies, we hold that the trial court erred in denying Norwood’s summary-
judgment motion. Norwood’s sole assignment of error is sustained, and we reverse
the judgment of the trial court and remand the cause with instructions to enter
judgment in favor of the city of Norwood.
Judgment reversed and cause remanded.
CUNNINGHAM, P.J., concurs.
MYERS, J., concurs in judgment only.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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