DocketNumber: Case No. 99 CA 23.
Judges: ABELE, J.
Filed Date: 12/15/1999
Status: Non-Precedential
Modified Date: 4/18/2021
Kay L. Engle, the administrator of the estate of Jeffrey N. Engle, plaintiff below and appellant herein, raises the following assignment of error for review:
"THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT BY GRANTING DEFENDANT CITY OF MARIETTA'S MOTION FOR SUMMARY JUDGEMENT."
Our review of the record reveals the following facts pertinent to the instant appeal. On October 3, 1995, Jeffrey N. Engle had been traveling southbound on State Route 7, while David E. Ogburn was traveling northbound on State Route 7. As Ogburn approached a curve, the trailer his vehicle was pulling crossed over the center line, striking the front driver's side of Engle's vehicle and fatally injuring Engle.
At the point on the roadway where the accident occurred, the northbound and the southbound lanes are fourteen feet wide and have curbed shoulders. The speed limit is forty miles per hour, with an advisory speed limit of twenty miles per hour for northbound traffic.
Prior to approaching the northbound curve, the following signs are posted to advise a driver of the upcoming curve and other conditions: (1) two standard 36 x 36 inch curve warning signs, each with a twenty miles per hour advisory speed limit and a hazard identification beacon; (2) one 30 x 30 inch slippery when wet sign; (3) one 36 x 36 inch truck tip sign; (4) one 30 x 30 standard railroad advance warning sign; (5) two standard large arrow signs; and (6) four 18 x 24 standard chevron alignment signs.
At the time of the accident, the section of the road where the accident occurred was not under construction or any state of repair. Traffic patterns were operating under normal flow patterns. The Marietta City Engineer's Department had not received any reports of obstructions in the area. Moreover, immediately after the accident, the investigating officer did not observe any obstructions or defects in the roadway.
A subsequent investigation into the cause of the accident revealed that the trailer's brakes were out of adjustment and caused the brakes to lock up. When the brakes locked up, the trailer slid across the center line.
On January 24, 1997, appellant filed a complaint against Ogburn, Ogburn's employer and the owner of the trailer that struck appellant, and the City of Marietta.1 In the complaint, appellant alleged, inter alia, that: "Fort Harmar Drive, at the site of the * * * motor vehicle accident, was designed, constructed, and maintained in a defective manner making travel thereon dangerous and Defendant City of Marietta had actual and constructive notice of its unsafe condition * * *." Appellant also alleged that appellee "willfully, wantonly, recklessly, and negligently failed in its duty to cause Fort Harmar Drive * * * to be kept open, in repair, free from nuisance, and safe to travel on * * *." Appellee filed an answer denying liability.
On May 4, 1998, appellee filed a motion for summary judgment. Appellee contended that pursuant to R.C. Chapter 2744, it was immune from liability for the decedent's injury. Appellee asserted that although R.C. Chapter 2744 contains exceptions to the general grant of non-liability, appellant had not demonstrated that any exception applied. Moreover, appellee argued that appellant's negligent construction and design claim must fail because appellee did not design the roadway. Rather, it is undisputed that the State of Ohio designed the roadway.
In response to appellee's motion, appellant asserted that genuine issues of material fact remained as to whether appellee was liable for the decedent's injury. Appellant alleged that the section of the road where the accident occurred was dangerous and constituted a nuisance. Appellant noted that an accident study conducted at appellee's request ranked the intersection as one of the most dangerous in the city.
On August 28, 1998, the trial court granted appellee's summary judgment motion. Appellant filed a timely notice of appeal.
In her sole assignment of error, appellant complains that the trial court improperly granted appellee's motion for summary judgment. Appellant asserts that genuine issues of material fact remain for resolution at trial regarding whether appellee is entitled to sovereign immunity. In particular, appellant contends that genuine issues remain as to whether appellee negligently maintained the roadway upon which the accident occurred and as to whether a nuisance existed upon the roadway of which appellee had knowledge. Additionally, appellant argues that appellee may be liable to the decedent even though appellee did not design the road. Appellant essentially asserts that appellee is liable for any design condition that results in a nuisance, regardless of which entity designed the roadway. Appellant further contends that appellee acted willfully, wantonly, and recklessly in failing to keep the road free from nuisance.
Appellee, on the other hand, contends that no genuine issues of material fact remain as to whether it is immune from liability. Appellee posits three different reasons why it is protected by the sovereign immunity statutes: (1) appellee did not design the road; (2) no evidence exists that a nuisance existed upon the roadway; (3) even if a nuisance existed, appellee possessed neither actual nor constructive knowledge of the nuisance; and (4) the discretionary defense set forth in R.C.
Appellee thus argues that appellant has failed to present any evidence that a nuisance existed upon the roadway. Appellee points out that appellant simply re-states the allegations contained in the complaint. Additionally, appellee asserts that when ruling upon appellee's motion for summary judgment, the trial court erroneously considered inadmissible hearsay evidence that appellant introduced.
When reviewing a trial court's decision regarding a motion for summary judgment, an appellate court conducts a de novo review. See, e.g., Village of Grafton v. Ohio Edison Co. (1996),
Civ.R. 56(C) provides, in relevant part, as follows:
* * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.
Thus, a trial court may not grant a motion for summary judgment unless the evidence before the court demonstrates that: (1) no 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 nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. See, e.g., Vahila v. Hall (1997),
In responding to a motion for summary judgment, the nonmoving party may not rest on "unsupported allegations in the pleadings."Harless v. Willis Day Warehousing Co. (1978),
* * * * When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.
Consequently, once the moving party satisfies its Civ.R. 56 burden, the nonmoving party must demonstrate, by affidavit or by producing evidence of the type listed in Civ.R. 56(C), that a genuine issue of material fact remains for trial. A trial court may grant a properly supported motion for summary judgment if the nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that there is a genuine issue for trial. Dresher, supra; Jackson v. Alert Fire Safety Equip., Inc. (1991),
Upon our review of the record in the case sub judice, we believe that the trial court appropriately granted summary judgment in appellee's favor. Our review of the record reveals that no genuine issues of material fact remain as to whether liability may attach to appellee. The evidence in the case at bar aptly demonstrates that the sovereign immunity provisions of the Revised Code protect appellee from liability for appellant's decedent's injury.
R.C. Chapter 2744, the Political Subdivision Tort Liability Act, absolves political subdivisions of tort liability, subject to certain exceptions. See Franks v. Lopez (1994),
R.C.
R.C.
R.C.
In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to persons or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:
(5) The political subdivision is immune from liability if the injury, death or loss to persons 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.
The R.C.
In the case at bar, the parties do not dispute that appellee is a political subdivision entitled to the general grant of immunity. The parties dispute, however, whether a genuine issue of material fact remains as to whether appellee's immunity is excepted under R.C.
In determining whether a nuisance, for purposes of R.C.
"The phrase ``free from nuisance' in former R.C.
2744.02 (B)(3) has been interpreted most often by this court in the context of an alleged failure by a political subdivision to keep its roads and highways free from physical obstructions that interfere with visibility and create an unsafe condition."
Cater v. Cleveland (1998),
Alleging that a roadway is defectively designed or constructed, or that the roadway lacks traffic or warning signs does not, however, sufficiently demonstrate that a nuisance exists upon the roadway. Franks,
Once it is demonstrated that a nuisance exists, liability will not attach unless the plaintiff also establishes that the political subdivision possessed "actual or constructive notice of the nuisance." Vogel v. Wells (1991),
In Franks v. Lopez (1994),
The Ohio Supreme Court found that a question of fact remained as to whether the township had actual or constructive knowledge of the nuisance created by an improperly reflectorized and improperly placed sign. The court noted that the plaintiffs presented an affidavit from an engineering expert describing the hazard, along with photographs showing the obviousness of the danger posed by the failure to maintain the reflective sign. Moreover, the plaintiffs introduced the deposition testimony of a nearby resident who stated that there had been at least three previous accidents at the intersection.
The Franks court further rejected the defendants' assertion that R.C.
Franks,"Overhanging branches and foliage which obscure traffic signs, malfunctioning traffic signals, signs which have lost their capacity to reflect, or even physical impediments such as potholes, are easily discoverable, and the elimination of such hazards involves no discretion, policy-making or engineering judgment. The political subdivision has the responsibility to abate them and it will not be immune from liability for its failure to do so."
In Helton v. Scioto Bd. of County Commrs. (1997),
On appeal, we reversed the trial court's decision. The Helton
court noted that the plaintiffs presented affidavits from others who frequented the road where the accident occurred and who stated that the roadway had water running over it whenever it rained or whenever snow melted. Moreover, the plaintiffs presented evidence that debris had clogged the ditch. The Helton
court found that "reasonable minds could conclude that water flowing over the road whenever it rains or snows as a result of an improperly designed or maintained drainage system, over which the county has control, is as much an impediment to the safe flow of traffic as a malfunctioning traffic light * * *." Helton,
In Israel v. Jefferson Twp. Bd. of Trustees (Dec. 10, 1990), Montgomery App. No. 12071, unreported, the court concluded, in accord with Franks, that a defectively designed roadway is not a nuisance. In Israel, the plaintiff, while driving down a roadway, failed to negotiate a curve and went left of center. The plaintiff then crashed into a utility pole. The trial court granted summary judgment in the township's favor.
On appeal, the plaintiff asserted that the accident reconstructionist's report precluded summary judgment. The report stated that the road "had ``numerous design defects which were a major contributor to the cause of [plaintiff's] accident' [The report] further concluded that ``these defects were open and blatant and easily discoverable by those in charge of providing a safe thoroughfare for the traveling public.'" Thus, the plaintiff argued that the township "clearly had notice of the ``design defect.'" The court of appeals, however, concluded that a design defect does not constitute a nuisance.
In the case at bar, we have reviewed the pertinent Civ.R. 56 evidence and conclude that appellant has presented no evidence that a nuisance existed upon the roadway. Appellant has not argued that any signs along the roadway were improperly placed or improperly reflectorized, as was the case in Franks. Rather, appellant's argument appears to rest more upon the theory that the roadway was somehow defectively designed or constructed. SeeSaulsbury, supra. Franks and other cases clearly state that a political subdivision may not be liable for a defectively designed roadway.
Moreover, appellant has presented no evidence that the city failed to maintain or otherwise repair the roadway. Instead, appellant essentially re-states the allegations contained in the complaint. We again note that in order to survive a properly supported summary judgment motion, the non-moving party must produce some evidence that the political subdivision failed to maintain the road, failed to repair the road, or permitted a nuisance to exist on the road. The non-moving party may not defeat a properly supported summary judgment motion simply by alleging that a nuisance exists. Rather, the non-moving party must specify the conditions existing upon the roadway that constitute a nuisance. Thus, we agree with appellee that appellant, in an attempt to defeat appellee's summary judgment motion, simply re-alleges the material contained in the complaint.
In sum, appellant has produced no evidence from which reasonable minds could conclude that the city failed in its R.C.
Thus, because appellant failed to establish that a R.C.
To overcome a properly raised discretionary defense, the plaintiff must establish that the political subdivision's exercise of discretion "was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner." R.C.
We further note that appellee has presented a cross-assignment of error. Appellee contends that the trial court erred in considering inadmissible hearsay evidence when ruling upon its motion for summary judgment. We believe, however, that our decision regarding appellant's assignment of error renders appellee's cross-assignment of error moot. We therefore decline to address the cross-assignment of error. See App.R. 12(A)(1)(c).
Accordingly, based upon the foregoing reasons, we overrule appellant's sole assignment of error and affirm the trial court's judgment.
JUDGMENT AFFIRMED.
* * * [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 * * *.
Thus, the amendment, among other things, eliminated the phrase "free from nuisance" and inserted the phrase "negligent failure to remove obstructions." As we point out supra, however, the Ohio Supreme Court found Am.Sub.H.B. 350 unconstitutional intoto.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
KLINE, P.J. EVANS, J.: Concur in Judgment Opinion.
For the Court
By: __________________ PETER B. ABELE Judge