Royce v. Smith

• Decision Date: 09 December 1981
• Docket Number: 81-56,Nos. 81-36,s. 81-36
• Citation: 68 Ohio St.2d 106,22 O.O.3d 332,429 N.E.2d 134
• Parties: , 22 O.O.3d 332 ROYCE et al., Appellants, v. SMITH, Appellant, Jackson Township Trustees et al., Appellees.
• Court: Ohio Supreme Court

Page 106

68 Ohio St.2d 106

429 N.E.2d 134, 22 O.O.3d 332

ROYCE et al., Appellants, v. SMITH, Appellant, Jackson Township Trustees et al., Appellees.

Nos. 81-36, 81-56.

Supreme Court of Ohio.

Dec. 9, 1981.

Syllabus by the Court

A complaint and a cross-claim seeking to impose liability on township trustees for their alleged negligence in failing to maintain a stop sign located on a township road state claims upon which relief can be granted.

Plaintiff-appellant Theodore Royce, accompanied by his wife and three children, was driving eastward through the intersection of Strausser Road, a county highway, and Arlington Road, a township highway, in Jackson Township, Stark County, when his station wagon was struck by a southbound vehicle driven by defendant-appellant, Jeffrey L. Smith. The collision occurred because Smith failed to heed a stop sign located on the Arlington Road side of the intersection. All the Royces were injured in the collision and required hospitalization, with Mrs. Royce suffering serious, permanent physical impairment.

Plaintiffs-appellants Royce filed a complaint, subsequently amended after a dismissal without prejudice, alleging that Smith was negligent in running the stop sign. The complaint further alleged that the Jackson Township Trustees and Stark County Engineer, appellees herein, negligently maintained the stop sign controlling the intersection by failing to cut back the surrounding foliage, which had obscured Smith's view of the stop sign. Defendant-appellant Smith cross-claimed against appellees, seeking contribution from them for their alleged failure to maintain the stop sign.

Appellees filed motions to dismiss for failure to state a claim upon which relief can be granted, pursuant to Civ.R. 12(B)(6), which were sustained by the trial court. On appeal the Court of Appeals in a split decision affirmed the lower court. The Court of Appeals determined that the duty to erect and maintain stop signs at intersections of through county roads rests upon the county, pursuant to R.C. 4511.65, and not upon the township trustees. The majority then concluded, however, that under R.C. 5543.14 and the rule expressed in Ohio Bell Telephone Co. v. Watson Co. (1925), 112 Ohio St. 385, the county engineer was not liable. Judge Rutherford, concurring in part and dissenting in part, would have upheld the dismissal pursuant to Civ.R. 12(B)(6) as to the county engineer but would not have dismissed the township trustees. Upon reconsideration the Court of Appeals reaffirmed its previous determination, whereupon appellants appealed to this court.

The cause is now before this court upon allowance of motions to certify the record.

Black, McCuskey, Souers & Arbaugh, Randolph L. Snow and Gust Callas, Canton, for plaintiff-appellants.

Day, Ketterer, Raley, Wright & Rybolt, Louis A. Boettler and Dennis M. Pilawa, Canton, for defendant-appellant.

James R. Unger, Pros. Atty., Loren E. Souers, Jr., Neal L. Fitzgerald and Stephen T. Yost, Canton, for appellees.

SWEENEY, Justice.

The question presented in the instant appeal is whether a complaint and a cross-claim seeking to impose liability on the township trustees and county engineer for their alleged negligence in failing to maintain the stop sign controlling the intersection where appellants' vehicles collided state claims for which relief can be granted.

The standard for dismissal pursuant to Civ.R. 12(B)(6) is set forth in the syllabus of O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 327 N.E.2d 753, which states:

"In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted (Civ.R. 12(B)(6) ), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recover. (Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, followed.)"

We must assess appellants' claims with reference to the O'Brien standard, assuming, as we must for purposes of Civ.R. 12(B)(6), the truth of the allegations contained in the complaint and cross-claim.

I.

The starting point for analyzing claims asserted against township trustees acting in their official capacity is R.C. 5571.10, which states in relevant part:

"(A) * * * each board of township trustees shall be liable, in its official capacity, for damages received by any person, firm, or corporation, by reason of the negligence or carelessness of such board in the discharge of its official duties."

By the terms of R.C. 5571.10 township trustees are not liable for negligence generally; the negligent act complained of must arise from the breach of "official duties."

Appellants contend that among the various official duties of township trustees is the duty to maintain traffic control devices pursuant to R.C. 4511.11. R.C. 4511.11(A) states in relevant part:

"Local authorities in their respective jurisdictions shall place and maintain traffic control devices in accordance with the department of transportation manual and specifications for a uniform system of traffic control devices, * * * upon highways under their jurisdiction as are necessary * * * to regulate, warn, or guide traffic."

Township trustees are "local authorities" for purposes of R.C. Chapter 4511. ¹ Appellants submit that the applicable standard of care to determine whether the trustees have fulfilled their obligations under R.C. 4511.11 or have been negligent with respect thereto is established by the Department of Transportation manual, which is incorporated into the statute by express reference. Several provisions in the manual are relevant to the instant cause. Section 2F provides in pertinent part: "Special care should be taken to see that weeds * * * (and) shrubbery * * * are not allowed to obscure the face of any sign." Section 2E-1 speaks of positioning signs for maximum visibility, ² while Section 2N-17 recommends the use of a "Stop Ahead" sign if the visibility of a stop sign is restricted by, inter alia, "foliage." ³ If, as appellants argue, R.C. 4511.11 imposes official duties, specifically the aforestated duties described in the manual, then the breach of these duties would give rise to liability pursuant to R.C. 5571.10.

Appellees-township trustees, for their part, contend that "the 'official duties' referred to in O.R.C. Section 5571.10 are limited to duties imposed under Chapter 5571 of the Ohio Revised Code * * *." The trustees rely on Forbis v. Springfield Township Trustees (1978), 56 Ohio App.2d 249, 382 N.E.2d 781, to support their position. Forbis dealt with a plaintiff who was injured when a glass door in the township hall shattered. The court in Forbis reversed the trial court's dismissal pursuant to Civ.R. 12(B)(6) on grounds other than the scope of the waiver of immunity under R.C. 5571.10; the R.C. 5571.10 discussion in Forbis was unnecessary to the result. Moreover, it is significant that the General Assembly included the broad phrase "official duties" in R.C. 5571.10 instead of language that would expressly limit the waiver of immunity to duties imposed by R.C. Chapter 5571.

The language of R.C. 5571.10 may be compared to that of R.C. 305.12, which waives the immunity of county commissioners only and specifically with respect to keeping roads and bridges in proper repair, to support the conclusion that the General Assembly intended to impose liability on township trustees for breaches of official duties notwithstanding whether the duties arose under R.C. Chapter 5571.

This is not to say, however, that the scope of liability of township trustees pursuant to R.C. 5571.10 is as broad as that imposed on municipalities under R.C. 723.01. R.C. 723.01 requires municipal authorities not only to keep roads "in repair" but also to keep them "free from nuisance." In Fankhauser v. Mansfield (1969), 19 Ohio St.2d 102, 249 N.E.2d 789, this court held that:

"A petition, alleging that a municipality failed to repair an electric traffic signal after receiving reasonable notice that the signal was not functioning properly and that the malfunction caused a dangerous condition which caused the automobile accident resulting in plaintiff's injuries, states a cause of action against the municipality for maintaining a nuisance in violation of Section 723.01, Revised Code. * * * "

Thus, Fankhauser turned on the catchall "free from nuisance" language of R.C. 723.01, which language is conspicuously absent from R.C. 5571.10.

In sum, the scope of liability of township trustees under R.C. 5571.10 is broader than that imposed on county commissioners pursuant to R.C. 305.12 while narrower than the scope of liability imposed on municipal authorities per R.C. 723.01. ⁴

In its memorandum upon reconsideration the Court of Appeals found that the township trustees had no official duty to maintain the stop sign controlling the intersection of Strausser and Arlington roads. The court interpreted R.C. 4511.11, as read through R.C. 4511.65, to impose no liability on the township trustees. The court stated: "Our analysis is and was that R.C. 4511.65 places the duty to erect and maintain stop signs at intersections of through county roads and highways upon the county, not the township, * * * *." ⁵ Nevertheless, R.C. 4511.65 speaks only of erecting stop signs; maintaining stop signs is nowhere mentioned in the section. Thus, even if the Court of Appeals correctly ascribed responsibility to the county for initially placing the stop sign at issue herein, the duty to maintain said stop sign would still fall on the township trustees pursuant to R.C. 4511.11, a point noted by Judge Rutherford in his dissent.

In its original opinion the appellate court below also found support for its decision in R.C. 5543.14, which states in relevant part:

"With the consent of the abutting landowner, the county engineer shall have control of all trees and shrubs in the county roads of his county and the board of township trustees shall have control of...