Allen Freight Lines, Inc. v. Consol. Rail Corp.

• Decision Date: 12 August 1992
• Docket Number: No. 91-512,91-512
• Citation: 595 N.E.2d 855,64 Ohio St.3d 274
• Parties: ALLEN FREIGHT LINES, INC. et al., Appellees, v. CONSOLIDATED RAIL CORPORATION et al., Appellants.
• Court: Ohio Supreme Court

Page 274

64 Ohio St.3d 274

595 N.E.2d 855

ALLEN FREIGHT LINES, INC. et al., Appellees, v. CONSOLIDATED RAIL CORPORATION et al., Appellants.

No. 91-512.

Supreme Court of Ohio.

Submitted Feb. 12, 1992.

Decided Aug. 12, 1992.

Syllabus by the Court

R.C. 5577.05(D) creates no duty in the state, a municipal corporation, county, township, or any railroad or other private corporation to alter existing structures or provide vertical clearance for maximum-height vehicles. Accordingly, that section excepts such entities from liability for failure to provide vertical clearance for maximum-height vehicles premised on R.C. 723.01, or theories of common-law nuisance and negligence.

On January 21, 1986, an employee of appellee Allen Freight Lines, Inc. ("Allen Freight") attempted to drive a truck with a height of thirteen feet six inches under a railroad bridge with a clearance of twelve feet. The truck was owned by Allen Freight and the bridge was owned by Consolidated Rail Corporation ("Conrail"). The city of Cleveland ("Cleveland") is responsible for the maintenance of the road surface below the bridge.

Allen Freight and its insurer and subrogee, appellee Great West Casualty Company ("Great West"), filed a complaint seeking compensation for damages to the truck. The complaint alleged negligence and the maintenance of a nuisance by appellants Conrail and Cleveland in their failure to provide adequate clearance. Appellees also alleged that the defendants had failed to provide warning of the low clearance. The court of common pleas granted summary judgment in favor of Conrail and Cleveland. The court of appeals affirmed the summary judgment in favor of Conrail on the issue of failure to warn. It is from the court of appeals' reversal of the remainder of the trial court's ruling that Conrail and Cleveland bring this appeal.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

McNeal, Schick, Archibald & Biro Co., L.P.A. and William M. Kovach, Cleveland, for appellees.

Gallagher, Sharp, Fulton & Norman and Robert H. Eddy, Cleveland, for appellant Consol. Rail Corp.

Danny R. Williams, Kathleen M. Sweeney and LuAnn A. Polito, Cleveland, for appellant City of Cleveland.

MOYER, Chief Justice.

The first issue presented is whether R.C. 5577.05 absolves the appellants from a duty to provide clearance for maximum-height vehicles under the bridge. R.C. 5577.05 states:

"No vehicle shall be operated upon the public highways, streets, bridges, and culverts within the state, whose dimensions exceed those specified in this section.

" * * *

"(C) No such vehicle shall have a height in excess of thirteen feet six inches, with or without load.

" * * *

"This section does not require the state, a municipal corporation, county, township, or any railroad or other private corporation to provide sufficient vertical clearance to permit the operation of such vehicle, or to make any changes in or about existing structures now crossing streets, roads, and other public thoroughfares in this state."

Appellees contend that despite R.C. 5577.05, both the city and the railroad had a duty to Allen Freight to provide adequate clearance. Appellees' theories of liability are common-law negligence and nuisance as to Conrail, and nuisance as to Cleveland pursuant to R.C. 723.01. ¹ They contend that the nuisance was a qualified nuisance, as opposed to an absolute nuisance. "[A] civil action based upon the maintenance of a qualified nuisance is essentially an action in tort for the negligent maintenance of a condition, which, of itself, creates an unreasonable risk of harm, ultimately resulting in injury. The dangerous condition constitutes the nuisance. The action for damages is predicated upon carelessly or negligently allowing such condition to exist." Rothfuss v. Hamilton Masonic Temple Co. (1973), 34 Ohio St.2d 176, 180, 63 O.O.2d 270, 272, 297 N.E.2d 105, 109. "In such case, of course, negligence must be averred and proven to warrant a recovery." Taylor v. Cincinnati (1944), 143 Ohio St. 426, 441, 28 O.O. 369, 375, 55 N.E.2d 724, 731. Accord Kubitz v. Sandusky (1964), 176 Ohio St. 445, 27 O.O.2d 422, 200 N.E.2d 322; Curtis v. Ohio State Univ. (1986), 29 Ohio App.3d 297, 29 OBR 363, 504 N.E.2d 1222. The allegations of nuisance and negligence therefore merge, as the nuisance claims rely upon a finding of negligence.

Appellants maintain that as a matter of law there was no negligence, and therefore no nuisance, because no duty to provide clearance for Allen Freight's vehicle existed. We agree.

The issue raised has not previously been addressed by this court, although several related cases are instructive. In Yackee v. Napoleon (1939), 135 Ohio St. 344, 14 O.O. 231, 21 N.E.2d 111, paragraph six of the syllabus, this court held that "[w]here an overhead railroad bridge * * * originally met the reasonable requirements of travel over the street spanned by the bridge, but has since become insufficient in clearance above the street by reason of changed conditions in lawful modes of street travel, it is the duty of the railroad company to make such alterations in its bridge as become essential to so meet changed conditions as to permit such travel with reasonable safety." Yackee, however, was decided prior to the amendment in 1949 to G.C. 7248-2, the predecessor of R.C. 5577.05, that declared that the statute imposed no duty on a municipality or railroad to provide clearance for maximum-height vehicles. See 123 Ohio Laws 557, 558.

After this amendment, the Court of Appeals for Cuyahoga County decided a case identical in relevant facts to the one before us. In Brelo v. New York Central RR. Co. (1960), 112 Ohio App. 145, 150, 16 O.O.2d 63, 66, 168 N.E.2d 609, 612, the court held: "[R.C. 5577.05] was not intended to regulate the minimum clearances of overpasses, of railroads or otherwise, or to create by legislation a nuisance out of every bridge in Ohio where the clearance, although sufficient when built, did not provide sufficient clearance to accommodate vehicles coming within the amended extension of motor vehicle height limits. The last paragraph of the amendment settles this question." In its opinion the court also noted that "[t]here can be no doubt that the Legislature intended by this amendment [to R.C. 5577.05] to nullify the law of the case of Yackee * * *. This purpose was clearly accomplished." Id. at 150, 16 O.O.2d at 65, 168 N.E.2d at 612.

This court similarly found that R.C. 5577.05 eliminated any duty to provide clearance for maximum-height vehicles: "We believe that Section 5577.05, Revised Code, does release a municipality from any obligation to provide vertical clearance for maximum size vehicles, and to the extent that the Yackee case stood for the proposition that a municipality had to provide clearance for maximum size vehicles it is no longer controlling." (Emphasis sic.) Robert Neff & Sons, Inc. v. Lancaster (1970), 21 Ohio St.2d 31, 36-37, 50 O.O.2d 80, 83, 254 N.E.2d 693, 696. In Neff, however, the court went on to say that "we are unable to find that the 1949 amendment to Section 7248-2, General Code (now Section 5577.05, Revised Code), abolishes completely the rule contained in the first paragraph of the syllabus of Yackee that the duty imposed upon a municipal corporation to keep its streets open, in repair and free from nuisance extends to conditions and...