Barbara J. Carney v. Hulon Mcafee
| Decision Date | 31 December 1986 |
| Docket Number | 86-LW-4172,E-85-58 |
| Parties | Barbara J. CARNEY, et al., Plaintiffs-Appellants Cross-Appellees, v. Hulon McAFEE, Defendant, The City of Sandusky, Ohio, Defendant-Appellee Cross-Appellant. |
| Court | Ohio Court of Appeals |
Messrs Dennis, E. Murray and Kirk J. Delli Bovi, for appellant.
John A Coppeler, for appellees.
This cause is before the court on appeal from a judgment of the Erie County Court of Common Pleas.
On November 10, 1982, Barbara J. Carney and Joseph D. Carney (hereinafter appellants/cross-appellees) filed a complaint in the Erie County Court of Common Pleas suing Hulon McAfee City of Sandusky (hereinafter appellee/cross-appellant), The American Road Insurance Company, Ford Motor Company, John Doe, Inc. I, John Doe, Inc. II, John Doe I and John Doe II. In this complaint appellee/cross-appellant's liability was allegedly based upon failure of the City to keep the highway open, in repair and free from nuisance in violation of R.C. 723.01.
Subsequently, on January 27, 1983, appellants/ cross-appellees filed an amended complaint adding The American Road Insurance Company as a party defendant. In this amended complaint liability of the City of Sandusky was still allegedly based on a violation of R.C. 723.01. Numerous motions were filed. Another amended complaint was filed on September 1, 1983, after the case No. 44862 involving Michelle Carney, et al. was consolidated with case No. 44861. Liability of the City of Sandusky in this second amended complaint was still based upon an alleged violation of R.C. 723.01.
On October 25, 1984, a stipulation and judgment entry was filed dismissing with prejudice defendants Ford Motor Company and The American Road Insurance Company from the action.
The case proceeded to trial on the second amended complaint after consolidation on June 12 and 13, 1985, on the issue of liability of the City of Sandusky since defendant Hulon McAfee had admitted liability and for trial on the issue of damages on October 2, 3, 4 and 7, 1985. The jury rendered a judgment finding defendant Hulon McAfee twenty percent negligent and the City of Sandusky eighty percent negligent. Subsequent to this verdict, on December 27, 1985, the trial court filed a judgment entry wherein it permitted the appellants/cross-appellees to file a third amended complaint in which they abandoned their claim seeking to hold the City of Sandusky liable under R.C. 723.01 and proceeded on a pure negligence theory against the City of Sandusky.
Due to the fact that the case actually proceeded to trial by jury on the second amended complaint after consolidation, wherein liability of the City of Sandusky was sought based on an alleged violation of R.C. 723.01, we shall be addressing both the issue of a violation of R.C. 723.01 and a pure negligence theory when considering the assignments of error.
The pertinent facts of the case are as follows. On the evening of December 2, 1980, defendant, Hulon McAfee, while driving south on the Milan Road overpass in the city of Sandusky, Ohio, he allegedly skidded on ice and crossed over a nine inch high by two feet wide concrete median, and collided with the northbound automobile driven by appellant/cross-appellee Barbara Carney. Approximately one half hour earlier, McAfee had traveled the same route proceeding northbound without encountering snow or ice on the bridge; since that time the temperature had dropped, and rain and sleet had begun to accumulate.
The Milan Road overpass was designed and constructed with state funds on State Route 250 within the Sandusky city limits in the late 1960s. As designed and built, a concrete median rather than a center guardrail separated north and southbound vehicles.
As a result of the collision, Barbara Carney sustained severe and permanent injuries. Her daughter Michelle also sustained personal injuries. The Carneys filed suit and judgment was rendered on a jury verdict. The trial court held McAfee and the City jointly and severally liable for the verdict on damages, and allowed prejudgment interest from the date of the verdict on liability against the City which the court specifically found to have failed to make a good faith effort to settle.
The appellee/cross-appellant's first and fourth assignments of error will be addressed together initially, since their resolution will aid the court in resolving the remaining assignments of error. The fourth assignment of error is stated as follows:
"4.The jury's verdict and subsequent judgment on the issue of liability as they relate to defendant-appellee/cross-appellant are against the manifest weight of the evidence."
In its fourth assignment of error, the City contends that the jury's verdict and subsequent judgment on the issue of liability was against the manifest weight of the evidence. It is well-settled law in Ohio that:
"Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279, at the syllabus.
Therefore, if the Carneys produced some competent credible evidence going to each element of the cause of action, then this court must uphold the trial court's judgment based on the jury verdict.
It must first be noted that the Supreme Court of Ohio has abrogated the defense of sovereign immunity, thereby rendering municipal corporations subject to suit for damages for their acts of statutory or common law negligence. Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St. 3d 31; Dickerhoof v. Canton (1983), 6 Ohio St. 3d 128. Only where a statute expressly provides immunity may municipalities escape liability. Haverlack v. Portaqe Homes, Inc. (1982), 2 Ohio St. 3d 26; Strohofer v. Cincinnati (1983), 6 Ohio St. 3d 118.
The jury by way of interrogatory enumerated the negligence of the City that proximately caused the collision as:
Since the case proceeded to trial by jury on the second amended complaint which sought to hold the appellee/ cross-appellant liable under R.C. 723.01, we shall consider the pertinent part of that statute which imposes a statutory duty upon municipalities as follows:
(Emphasis added.)
R.C. 723.54 provides immunity from R.C. 723.01: * * *
"A municipal corporation shall not be liable for damages under section 723.01 of the Revised Code for injuries to person or property on bridges for which the municipal corporation does not have the responsibility of maintenance or inspection." ®1¯
Appellants/cross-appellees argue that the City is nevertheless liable because it assumed the duty of maintaining the bridge. Even if the City undertook this duty, the common law requirements and policies underlying R.C. 723.01 would still have to be followed, so these shall be considered.
In order for a municipality to have liability under R.C. 723.01, the plaintiff must establish either that (1) the municipality's " * * * agents or officers actively created the faulty condition * ** " or (2) the condition " * * * was otherwise caused and the municipality had actual or constructive notice of its existence." City of Cleveland v. Amato (1931), 123 Ohio St. 575, 577. See, also, Beebe v. City of Toledo (1958), 168 Ohio St. 203; City of Cleveland v. Pine (1931), 123 Ohio St. 578; Village of Liepsic v. Gerdeman (1903), 68 Ohio St. 1; Corrigan v. Franklin (Nov. 30, 1982), Warren App. No. 52, unreported; Maley v. Village of Wyoming (1951), 88 Ohio App. 383; Bello v. City of Cleveland (1920), 13 Ohio App. 297, affirmed (1922), 106 Ohio St. 94. The notice must have reference, not to the future, but to the present. Lohmann v. City of Cincinnati (1960), 113 Ohio App. 353, 355. Additionally, a municipality is liable for injuries caused by a defect, only if it has notice of the presence of the defect " * * * for a sufficient length of time before the injury to have cured the defect or to have prevented the injury. * ** " McCave v. City of Canton (1942), 140 Ohio St. 150, 155. See, also, Leipsic, supra, at 8; Mills v. City of Springfield (1956), 75 Ohio Law Abs. 150, 156.
Deckant v. City of Cleveland (1951), 155 Ohio St. 498, 502.
See also, Kimball v. City of Cincinnati (1953), 160 Ohio St. 370; Chase v. City of Cleveland (1886), 44 Ohio St. 505; 54 Ohio Jurisprudence 3d (1984), 525, Highways, Streets, and Bridges, Section 411. A municipality is not required to do what is unreasonable and is not negligent for omitting to do that " * * * which can be done or prevented only by the exercise of extraordinary exertion or by the expenditure of extraordinary...
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