Cerri v. Clemson Excavating, Inc.

[Cite as Cerri v. Clemson Excavating, Inc., 2019-Ohio-1161.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
KENNETH U. CERRI, JR., : OPINION
Plaintiff-Appellee, :
CASE NO. 2018-G-0162
- vs - :
CLEMSON EXCAVATING, INC., :
Defendant, :
THE TOWNSHIP OF THOMPSON, et al., :
Defendants-Appellants. :
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 2015 P
000355.
Judgment: Affirmed.
Carl P. Kasunic and David F. Neilsen, Carl P. Kasunic Co., LPA, 4230 State Route
306, Building 1, Suite 300, Willoughby, OH 44094 (For Plaintiff-Appellee).
Gregory A. Beck and Andrea K. Ziarko, Baker, Dublikar, Beck, Wiley & Mathews, 400
South Main Street, North Canton, OH 44720 (For Defendants-Appellants).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellants, Thompson Township and Thompson Township Trustees
Frank Sirna, Erwin Leffel, and Al Safick (collectively “Thompson”), appeal the decision
of the Geauga County Court of Common Pleas denying Thompson’s motion for
summary judgment based on purported governmental immunity. Because we find there
is a genuine issue of material fact, we affirm the trial court’s judgment.
{¶2} On April 27, 2013, appellee, Kenneth Cerri, and his friend, Nestor
Bagliano, were riding their motorcycles on Burrows Road. As they crested a hill, the
pavement abruptly ended, and the road turned to gravel. Mr. Bagliano reached the
gravel first, recognized the hazard, and signaled to Mr. Cerri. In his deposition, Mr.
Bagliano testified he struggled but successfully maintained control of his motorcycle.
Mr. Cerri was not so fortunate; he lost control of his motorcycle, was ejected, and was
injured as a result.
{¶3} The record reflects that Burrows Road is located between Thompson and
Montville Townships. Pursuant to a 1989 agreement, Thompson and Montville share
responsibility for maintenance of the road by assigning each township a section of the
road for which they would be responsible. In recent practice, however, the townships
have shared the maintenance and costs of both sections depending on available funds;
the townships’ ability to perform the required maintenance; and the approval of their
respective boards of trustees.
{¶4} In 2012, the townships jointly desired to improve the “sight line” at the
intersection of Burrows and Sidley Roads, which included paving a portion of Burrows
Road, which to that point had always been a dirt and gravel road. The townships
expressed concerns about the cost, and ultimately the extent of the paving was scaled
back due to limited funding. There is conflicting evidence in the record as to whether
Montville moved forward with this project against the advice of the Geauga County
Engineer and Thompson. Regardless, project bids were solicited, Clemson Excavating,
Inc. won the bid on March 20, 2012, and completed the project October 11, 2012,
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leaving the transition between pavement and gravel at the crest of the hill Mr. Cerri and
Mr. Bagliano encountered in April 2013.
{¶5} Mr. Cerri filed a personal injury complaint against Thompson Township,
the Thompson Township Board of Trustees, Montville Township, the Montville Township
Board of Trustees, Clemson Excavating, Inc., Geauga County Engineers, the State of
Ohio Public Works Commission, and the Ohio Department of Transportation. The
claims against the latter two defendants were subsequently dismissed.
{¶6} Mr. Cerri’s claim asserts the defendants were negligent in that, inter alia,
the location of the transition from pavement to gravel is unsafe because drivers cannot
see the transition with enough notice due to the hill, there is no “pavement ends” sign,
the edge of the pavement is a two- to four-inch-deep drop-off, there is no reduction in
the 55-mph speed limit, the gravel portion of the road contained irregularly-sized stone
gravel pieces and the gravel road was negligently maintained. He also alleged that
“defendants jointly and severally failed to maintain the roadway * * * in a reasonably
safe condition for the motoring public and to keep its roadways in repair and free from
nuisance or other hazardous conditions.”
{¶7} In response to Mr. Cerri’s complaint, Thompson filed an answer and a
motion for summary judgment asserting the defense of governmental immunity set forth
in R.C. 2744.01, et seq. The trial court entered judgment, in pertinent part, denying
Thompson’s motion.
{¶8} Thompson now appeals, assigning for our review two assignments of
error. Thompson’s first assignment of error asserts:
{¶9} The trial court erred in denying Thompson Township’s
motion for summary judgment on the issue of political subdivision
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immunity when the township did not fail to keep Burrows Road “in
repair.”
{¶10} Ordinarily, Civ.R. 54(B) requires that a trial court order that disposes of
fewer than all claims against all parties include a determination that “there is no just
reason for delay” for the order to be deemed a final, appealable order. However, R.C.
2744.02(C) provides an exception for “[a]n order that denies a political subdivision * * *
the benefit of an alleged immunity from liability as provided under this chapter * * *,” as
is the case here. Id.
{¶11} Summary judgment is proper when the evidence shows “there is no
genuine issue as to any material fact, * * * the moving party is entitled to judgment as a
matter of law,” and when the evidence is construed most strongly in the nonmoving
party’s favor “reasonable minds can come to but one conclusion” adverse to the
nonmoving party. Civ.R 56(C).
{¶12} We review the trial court's decision to grant summary judgment de novo.
Grafton v. Ohio Edison Co., 77 Ohio St. 3d 102, 105 (1996). See also Cornelison v.
Colosimo, 11th Dist. Trumbull No. 2009-T-0099, 2010-Ohio-2527, ¶11 (reviewing de
novo the trial court’s denial of a motion for summary judgment based on governmental
immunity). When reviewing a decision de novo, we “conduct an independent review of
the evidence before the trial court without deference to the trial court’s decision.” Peer
v. Sayers, 11th Dist. Trumbull No. 2011-T-0014, 2011-Ohio-5439, ¶27.
{¶13} “A claim of sovereign immunity by a political subdivision requires the
three-tiered analysis provided in R.C. Chapter 2744.” Baker v. Wayne Cty., 147 Ohio
St.3d 51, 2016-Ohio-1566, ¶11. See also Colbert v. Cleveland, 99 Ohio St. 3d 215,
2003-Ohio-3319, ¶7. The first tier is the general rule that a political subdivision
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generally is “not liable in damages in a civil action for injury, death, or loss to persons 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.” R.C. 2744.02(A)(1). See also Lakota v. Ashtabula, 11th Dist. Ashtabula No.
2015-A-0010, 2015-Ohio-3413, ¶22. “‘Governmental functions’ include ‘[t]he regulation
of the use of, and the maintenance and repair of, roads, highways, [and] streets.’” Id.,
quoting R.C. 2744.01(C)(2)(e). Here, there is no dispute that Thompson is a political
subdivision operating in connection with a governmental function and thus we start with
the premise that Thompson is immune.
{¶14} However, political subdivision immunity is not absolute, and the second
tier looks to whether an exception to that immunity applies. Specifically at issue in this
case is the exception set forth in R.C. 2744.02(B)(3), which currently states:
{¶15} Except as otherwise provided in section 3746.24 of the Revised
Code, 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.
{¶16} Thompson states, “[f]or purposes of this case, consideration of this
exception turns on proof that Cerri’s alleged injury was ‘caused’ by the ‘negligent failure
to keep public roads in repair’ or the ‘negligent failure to remove obstructions from
public roads.’” We agree with this premise. In support of its first assignment of error,
Thompson argues (1) nothing in the record shows that the road was not in repair; (2)
road design choices and construction decisions are discretionary and thus immune from
liability; (3) placement of signs is discretionary and is immune from liability; (4) the
definition of “public roads” excludes berms, shoulders, and rights-of-way and thus are
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not part of the 2744.02(B)(3) exception to immunity; and (5) the 55-mph speed limit did
not cause the road to be out of repair. While Mr. Cerri’s complaint and subsequent
pleadings did allege negligence in the design, signage, berm, culvert, and rights-of way,
and speed limit, he also asserts that the road was improperly maintained. The
distinction is important and determinative.
{¶17} We agree with Thompson that a political subdivision’s road design,
placement of signs, maintenance of berms, shoulders, and rights-of-way, and speed
limits are not an exception of “in repair” or “obstruction” under R.C. 2744.02(B)(3).
Thus, such designs and signage are immune from liability. See R.C. 2744.01(H)
(“‘Public roads’ does not include berms, shoulders, rights-of-way, or traffic control
devices unless * * * mandated by the Ohio manual of uniform traffic control devices”).
However, this merely clarifies what “in repair” does not include. See also Baker, supra
¶23 (edge of pavement was not part of the public road); Pelletier v. Campbell, 153 Ohio
St.3d 611, 2018-Ohio-2121, ¶33 (overgrown foliage in “devil strip” that purportedly
obstructed drivers view of stop sign did not cause the road to be in disrepair); Lovick v.
Marion, 43 Ohio St. 2d 171, 172 (1975) (catch basin and sloping drain adjacent to
roadway were not part of roadway defined by former statute); Bartchak v. Columbia
Twp., 9th Dist. Lorain No. 17CA011096, 2018-Ohio-2991, ¶6-9 (High speed limit and
lack of “X”, “RR”, or “no-passing-zone” signage, and certain transverse lines around a
railroad track did not constitute disrepair or obstruction); Bonace v. Springfield Twp.,
179 Ohio App. 3d 736, 2008-Ohio-6364, at ¶29 (7th Dist.) (“‘in repair’ does not create a
duty to change allegedly absurd designs such as extreme and unnecessary side slopes
that were constructed (and recently reconstructed) into a road.”); Franks v. Lopez, 69
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Ohio St. 3d 345, 349 (1994) (finding “defective design or construction or lack of signage”
are discretionary functions immune from liability).
{¶18} To determine whether evidence shows a question of whether Burrows
Road itself was “in repair,” we must understand how “in repair” is defined. Since the
Revised Code does not define “in repair” as used in R.C. 2744.02(B)(3), we consider its
ordinary meaning.
{¶19} Thompson argues that we should interpret “in repair” in part based on
Pelletier, as “the state of being in good or sound condition.” Pelletier, supra, (analyzing
whether a stop sign was in good repair when overhead foliage obstructed driver’s view
of sign). We note this definition does not necessarily exclude “failure to maintain” from
the definition of “in repair.”
{¶20} In the context of road condition, courts have defined “in repair” as
“maintaining a road’s condition after construction or reconstruction, for instance by fixing
holes and crumbling pavement.” Bonace, supra, at 743. See also, Heckert v. Patrick,
15 Ohio St. 3d 402, 406 (1984); Sanderbeck v. Medina, 9th Dist. Medina No. 09CA0051-
M, 2010-Ohio-3659, ¶7; Emmerling v. Mahoning Cty. Bd. of Commrs., 7th Dist.
Mahoning No. 15 MA 0165, 2017-Ohio-9066, ¶33. Thompson also cites this definition
but concludes, “[t]here is no evidence the roadway surface had any deterioration, holes
or crumbling pavement at the time of the accident.” However, these were merely
examples the court gave, which, logically, are more applicable to paved roads; disrepair
in a gravel road may manifest differently. We would be remiss in our analysis to limit
disrepair to holes or crumbling pavement.
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{¶21} Other courts have also included maintenance as part of keeping roadways
“in repair.” See Messenger v. Lorain Cty. Commrs., 9th Dist. Lorain No. 99CA007372,
2000 WL 1072401, *5 (Aug. 2, 2000), (once Township decided to have a gravel road,
rather than a paved road, the “township had a duty to maintain the gravel road in proper
repair and apply the gravel in a safe and reasonable manner” and therefore the
“Township is not protected by governmental immunity in this instance”), citing
Fankhauser v. Mansfield, 19 Ohio St. 2d 102, (1969). See also Rastaedt v.
Youngstown, 7th Dist. Mahoning No. 12 MA 82, 2013-Ohio-750, ¶14 (finding injury due
to sewer system design immune from liability but injury as a result of City’s failure to
maintain the road not immune from liability).
{¶22} Finding then that negligent maintenance of a gravel road may fall within
the narrow “in-repair” exception of R.C. 2744.02(B)(3), we next consider the record
before us de novo to determine whether the evidence shows a question of material fact
remains as to whether Burrows Road was negligently maintained.
{¶23} In support of his claim, Mr. Cerri’s expert, Robert Burch, says, “Thompson
Township Trustees failed to maintain Burrows Rd. in repair and free of obstructions,”
Thompson argues that Mr. Burch’s report was “speculative and fraught with
inadmissible legal conclusions * * * not based upon his on inspection or knowledge of
Burrows Road”. It further asserts, “[t]here is simply no evidence that the actions or
inactions of the Township in any way caused Burrows Road to be out of repair * * *.”
Notably, however, Thompson does not assert that Burrows Road was regularly
maintained. Upon review of the record, we conclude there is sufficient evidence to
support a finding that Burrows Road was not in repair.
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{¶24} Even if Mr. Cerri’s expert report was excluded from consideration, we find
there is sufficient evidence in the record to create a genuine issue of material fact as to
whether Burrows Road was “in repair.” During their depositions, both John Marsic,
Montville Township trustee, and Erwin Leffel, Thompson Township trustee, stated it is
normal for ruts, ripples, and potholes to occur on gravel roads and that a maintainer
must be pulled on a regular basis to prevent this. However, the first mention of the
maintainer being used on Burrows Road is in the Montville Township meeting minutes
dated October 1, 2013, six months after Mr. Cerri’s accident.
{¶25} Moreover, Shane Hajjar, civil engineer and deputy county engineer for
Geauga County Engineer’s Office, during his deposition, stated that the amount of
aggregate that was present on Burrows Road at the end of the “sight improvement
project” was not suitable for long-term use. Mr. Hajjar stated that the townships placed
additional aggregate but neither he nor his office confirmed where on the road the
aggregate was placed and whether it was satisfactory for long-term use.
{¶26} Joseph LaRosa, road supervisor for Thompson Township, during his
deposition, stated that since the end of the construction project, he never ran a grader
on Burrows Road. He further testified that Clemson removed a portion of the gravel
from Burrows Road and moved to Montville Township leaving Burrows Road “in
disrepair.” When asked what he did to get the road back into repair, Mr. LaRosa stated
he didn’t do anything, but Montville had placed new gravel. The Montville meeting
minutes suggest 40 tons of #4 gravel was placed on February 5, 2013, and that they
expected Thompson to pay for half of that cost.
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{¶27} There is conflicting evidence as to the condition of the road during the
winter of late 2012 and early 2013. When deposed, Mr. Marsic, and city engineer for
the city of Painesville, Leanne Exum, stated the road was “acceptable” and “safe.” At a
Montville Township Board of Trustees meeting February 19, 2013, the minutes reflect
that “Burrows Rd. (east of Rt. 528) is holding pretty well.” However, the Montville
meeting minutes on December 4, 2012, state, “Thompson Road Department ditched
Burrows Rd., west of Sidley to Route 528, on the south side. Burrows Rd., east of
Sidley is getting muddy.” On March 5, 2013, the Montville Township meeting minutes
reflect:
{¶28} Mr. Marsic reported that portion of Burrows road is holding now but
feels that the worst is to come once the rainy season starts. Mrs.
Holbert felt that we should meet with the county and Thompson to
make sure we have a good agreement in place concerning that
portion of Burrows Rd. Mr. Marsic is planning to attend
Thompson’s meeting on March 6, 2013.
{¶29} Furthermore, it is unclear which township was responsible for the
maintenance and cost of Burrows Road and the record suggests both townships ceased
maintenance expecting the other to handle it. The Montville Township Trustee meeting
minutes state that Thompson was not responsive to requests to pay for part of
maintenance or do any maintenance itself. On October 16, 2012, the meeting minutes
state, “[t]he board is in agreement that Montville Township’s responsibility on section C
& D of Burrows Rd. is now finished.” During a meeting held November 6, 2012, a
concerned Montville resident asked that a “pavement ends” sign be placed on Burrows
Road, but she was told to contact Thompson Township. On April 7, 2013, merely 20
days before Mr. Cerri’s accident, Ben Smith, Thompson Township Trustee, sent an
email to John Marsic and Frank Sirna, Montville Township Trustees, stating:
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{¶30} Prior to the bid date for your Burrows Road Improvement Project,
our board voiced its concern regarding the reprofiling of the eastern
end of the project without provisions to stabilize and place an
adequate thickness of new stone base. The minutes of the special
meeting on February 25, 2012 summarize our discussions on the
subject. We had made the request to reevaluate the plan for this
area to avoid exactly what is happening now. The road is failing
badly, and Montville is asking Thompson to help pay for the repairs.
Since the decision to proceed was made by Montville, against the
advice f the County Engineer and Thompson, we do not feel an
obligation to invest in repairing the failing areas. We will agree to
provide equipment and labor in conjunction with Montville, but not
to purchase stone that should have been part of the improvement
contract. When the roadway is returned to the serviceable
condition that existed prior to the “improvements”, we will continue
to honor our standing agreement to split the cost of stone for
normal maintenance.
{¶31} The minutes of the Montville and Thompson townships joint meeting held
February 25, 2012, also reflect discussion about the importance of maintaining the
gravel on Burrows Road but it is not clear from these meeting minutes which township
would be responsible for that maintenance.
{¶32} What is clear, even without Mr. Burch’s expert report, is that there is a
genuine issue of material fact as to whether Burrows Road was being maintained. The
record shows that each township expected the other township to participate in the
maintenance of Burrows Road. Without maintenance, Trustees from both townships
testified during deposition that ruts, ripples, and potholes would form. The record
further reflects some stating the road was in a safe, acceptable condition and others
stated the road was “failing badly.” As such, we find that the record contains sufficient
evidence of an issue of material fact for litigation as to whether the road was “in repair.”
{¶33} Finally, we consider the third tier of the analysis, which requires that if any
exception to immunity under R.C. 2744.02(B) applies, we must then determine whether
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the political subdivision has a defense to liability under R.C. 2744.03. Lakota, at ¶9,
citing Colbert. Thompson’s argument here focuses on R.C. 2744.03(A)(3) and (5),
which provide:
{¶34} (3) The political subdivision is immune from liability if the action or
failure to act by the employee involved that gave rise to the claim of
liability was within the discretion of the employee with respect to
policy-making, planning, or enforcement powers by virtue of the
duties and responsibilities of the office or position of the employee.
{¶35} * * *
{¶36} (5) The political subdivision is immune from liability if the injury,
death, or loss to person or property resulted from the exercise of
judgment or discretion in determining whether to acquire, or how to
use, equipment, supplies, materials, personnel, facilities, and other
resources unless the judgment or discretion was exercised with
malicious purpose, in bad faith, or in a wanton or reckless manner.
{¶37} As earlier discussed, once a political subdivision decides to have a gravel
road, its discretionary function is concluded, and it has a duty to maintain that road in
repair. Thus, political subdivisions are not immune from claims for negligent roadway
maintenance. See Messenger, supra at *5, citing Fankhauser, supra, at 109-10;
Rastaedt, supra at ¶14. Thus, we find no defense under R.C. 2744.03 applicable here
and Thompson’s first assignment of error is not well taken.
{¶38} Appellants’ second assignment of error asserts:
The trial court erred in denying Thompson Township’s motion for
summary judgment on the issue of political subdivision immunity
when the plaintiff’s accident was not caused by an obstruction.
{¶39} Thompson asserts there was no obstruction on Burrows Road. On this
assignment of error, we agree. Obstruction is not defined by the statute, but the
Supreme Court of Ohio has defined obstruction as used in R.C. 2744.02(B)(3) as “an
obstacle that blocks or clogs the roadway and not merely a thing or condition that
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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, ¶30 (Finding ice on
the road that had formed after a fire department training exercise was not an obstruction
under the current version of R.C. 2744.02(B)(3), noting that the result would have been
different prior to the 2003 revisions). The Court determined that to rise to the level of
obstruction, the road must block or clog the roadway. Mr. Cerri argues the gravel was
abnormally large for use on a roadway. However, even if that were true and even if it
hinders or impedes use of the roadway, there is no evidence it would block or clog the
roadway. The record does not show Burrows Road was impassable. Indeed, Mr.
Bagliano successfully navigated the road on a motorcycle just moments before Mr.
Cerri’s attempt. As the Court in Howard notes, the intent of the general Assembly in its
2003 revisions to R.C. 2744.02(B)(3) was to “impose a condition more demanding than
a showing of ‘nuisance’ in order for a plaintiff to establish an exception to immunity.” Id.
at ¶29. Thus, we find there is not enough evidence in the record to demonstrate
Burrows Road had an obstruction.
{¶40} Regardless, R.C. 2744.02(B)(3) creates separate exceptions for injuries or
losses caused by the “negligent failure to keep public roads in repair” and “negligent
failure to remove obstructions from public roads.” Id. “The terms “in repair” and
“obstructions” exist separately under R.C. 2744.02(B)(3) and provide two separate,
independent bases for precluding statutory immunity with respect to public roads.” Todd
v. Cleveland, 8th Dist. Cuyahoga No. 98333, 2013-Ohio-101, ¶14 (finding the city could
be liable for an injury caused by a hazardous pothole if it “was the result of the city's
‘negligent failure to keep public roads in repair,’ regardless of whether the pothole also
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constituted an ‘obstruction’ within the meaning of R.C. 2744.02(B)(3)”), citing Bonace,
supra, at ¶29, and Crabtree v. Cook, 10th Dist. Franklin No. 10AP-343, 2011-Ohio-
5612, at ¶27 (“negligent failure to keep public roads in repair” is an alternative basis for
liability and “imposes its own distinct duty of care upon the municipality”). Therefore,
because the question of “in repair” alone is enough to defeat political subdivision
immunity, a finding of no obstruction as defined by R.C. 2744.02(B)(3) does not save
appellants’ motion for summary judgment.
{¶41} In light of the foregoing analysis, we affirm the Judgment of the Geauga
County Court of Common Pleas denying Thompson’s motion for summary judgment.
THOMAS R. WRIGHT, P.J., concurs,
TIMOTHY P. CANNON, J., concurs with a Concurring Opinion.
_____________________
TIMOTHY P. CANNON, J., concurring.
{¶42} I concur with the majority opinion. I write separately to address Mr. Cerri’s
contention that Thompson has some liability with regard to matters within its discretion,
such as whether to erect “pavement ends” signs and whether to reduce the speed limit
from 55 m.p.h. I agree with Thompson that those decisions are within the discretion of
the township and are protected, to some extent, under R.C. 2744.03(A)(3). However,
the appropriate level of maintenance and repair must be judged in light of those
decisions. In other words, it may be appropriate to use large rocks to level and fill holes
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on a street that has warning signs and a low speed limit. The same may not be true for
a street with no warning signs and a speed limit of 55 m.p.h.
{¶43} This principal is illustrated in case law cited by the majority: while the
township has discretion on certain decisions and is immune under R.C. 2744.03(A)(3),
the level of maintenance required to keep the roadway in repair will vary based on the
discretionary decisions made therein. Ultimately, whether alleged defects are ones of
design or improper maintenance is properly determined by a jury by considering the
discretionary actions and the state of repair collectively.
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