David Helton v. Scioto Board of County Commissioners

• Decision Date: 30 September 1997
• Docket Number: 97-LW-3651,97CA2486
• Parties: David Helton, et al., Plaintiffs-Appellants v. Scioto Board of County Commissioners, Defendant-Appellee Case
• Court: Ohio Court of Appeals

David Helton, et al., Plaintiffs-Appellants v. Scioto Board of County Commissioners Defendant-Appellee

No. 97CA2486.

97-LW-3651 (4th)

Court of Appeals of Ohio, Fourth District Scioto

September 30, 1997

Blumenstiel Huhn, Wood & Adams, J.B. Blumenstiel, Columbus, Ohio, for Appellants.

Isaac Brant, Ledman & Teetor, Steven G. LaForge, Columbus, Ohio, for Appellee.

DECISION

Harsha J.

David Helton, et al., appeal a summary judgment in favor of the appellee, Scioto Board of County Commissioners. The appellants assert the following five assignments of error:

Assignment of Error No. 1

"The trial court erred in granting summary judgment for defendant-appellee * * * against plaintiffs-appellants * * *."

Assignment of Error No. 2

"The trial court erred in ruling as a matter of law that the County's liability depends [solely] on the [duty of care] imposed upon it by Chapter 2744 of the Ohio Revised Code, without consideration of and ignoring the County's admitted and statutory duty to maintain county roads and ditches alongside county roads to provide free passage of water for the drainage of county roads, as provided in Ohio Rev. Code, Sections 5535.01, 5543.01, 5543.12, and 315.08 * * *."

Assignment of Error No. 3

"The trial court erred in ruling as a matter of law that the water running across County Road 23 on April 10, 1994, overflowing from a clogged and inadequate drainage ditch alongside the road was not a nuisance * * *."

Assignment of Error No. 4

"The trial court erred in ruling as a matter of law that the water running across County Road 23 north of the intersection with County Road 26 on April 10, 1994, was caused solely by a sudden and severe rainstorm, a so-called `act of God,' thereby completely ignoring the substantial proof that for many years prior to April 10, 1994, water had consistently overflowed from the clogged and inadequate drainage ditch in the same precise area during or after any heavy rain or `when the snow melts * * *.'"

Assignment of Error No. 5

"The trial court erred in ruling as a matter of law that the County had no actual or constructive notice of the clogged and inadequate drainage ditch resulting in overflow of water across County Road 23 on April 10, 1994, thereby completely ignoring the substantial proof of prior complaints to the County of overflowing water at the same location, including an admitted and recorded complaint received by the County on March 18, 1993, that the ditch needs cleaned out, causing water on the road and several prior wrecks resulting therefrom, together with the sworn statement that nothing was done thereafter to correct the clogged and inadequate ditch * * *."

Pursuant to App.R.3(C) and R.C. 2505.22, in support of the

summary judgment, the appellee asserts one cross-assignment of error which states:

"THE COURT SHOULD HAVE GRANTED SUMMARY JUDGMENT IN THAT THE EVIDENCE WAS CLEAR THAT THE COUNTY ACTED REASONABLY."

This case arises out of a traffic accident that occurred in 1994. As Susan Blevins was driving on a section of Scioto County Road No. 23 that had water flowing over it, she lost control of her car and struck David Helton's oncoming van. Ms. Blevins died in the accident and Mr. Helton and his passengers were injured. The appellants, David Helton and his passengers, filed a complaint alleging that appellee, Scioto Board of County Commissioners was negligent in maintaining the ditch into which the water should have drained. They argue that in this case, the county is not immune from liability because the condition of the road was a nuisance for which the county is liable under R.C. 2744.02 (B)(3). The trial court sustained the appellee's motion for summary judgment and the appellants timely appealed.

Summary judgment is proper only when the party moving for summary judgment demonstrates (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds could come but to 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 most strongly construed in its favor. Civ.R. 56(C) and State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181.

The burden of showing that no genuine issue exists as to any material fact falls upon the party moving for a summary judgment. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112. A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production, and for which the moving party has met its initial burden. Dresher v. Burt (1996), 75 Ohio St.3d 280, Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St.3d 108. The appellate review of a summary judgment is conducted under a de novo standard. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38. We review the judgment independently and without deference to the trial court's decision. Midwest Specialties, Inc. v. Firestone Co. (1985), 42 Ohio App.3d 6. Ohio's statutory scheme gives political subdivisions a general grant of immunity under R.C. 2744.02(A)(1), subject to enumerated exceptions under R.C. 2744.02(B), which then gives rise to limited liability. See Howell v. Union Twp. Trustees (Mar. 18, 1997), Scioto App. No. 96CA2430, unreported. In order to hold a political subdivision liable, the plaintiff must demonstrate that one of the exceptions to immunity found in R.C. 2744.02(B) is applicable in the case. At issue here is R.C. 2744.02(B)(3) which states:

Except as otherwise provided in 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to persons or property caused by their failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivisions open, in repair, and free from nuisance * * *.

In appellants' first assignment of error, they argue that summary judgment was improper. For the reasons that follow, we agree. In sustaining assignments of error two, three, four and five, we have determined that summary judgment was improper because there are genuine issues of material fact as to (1) whether the condition of the road was a nuisance, (2) whether the county had notice of the condition, (3) whether the storm or the condition of the road was an act of God, and (4) whether any negligence on the part of the appellee was a concurrent cause of the plaintiffs' injuries. Therefore we sustain appellants' first assignment of error.

In appellants, second assignment of error, they argue that the trial court erred in ignoring the statutory duty of the county to provide maintenance of county roads and ditches as set forth in R.C. 5535.01, 5543.01, 5543.12 and 315.08. Appellants assert that these sections impose a duty upon the county that if violated, should be considered in determining liability under R.C. 2744.02(B)(3). To the limited extent that breach of this statutory duty creates a nuisance upon a public roadway, we agree. See the discussion which follows. To this limited extent, we sustain appellants' second assignment of error.

In appellants' third assignment of error, they argue that it was error for the trial court to rule that as a matter of law, the water on the roadway was not a nuisance. The appellants contend that the county failed to keep a public road, County Road No. 23, free from nuisance. Specifically, the appellants allege that the failure to keep the adjacent ditch in good working order, caused the road to flood during any rain or when snow melted.

When determining whether a nuisance exists, the focus is on whether a condition exists within the political subdivision's control that creates a danger for ordinary traffic on a regularly traveled part of the road. Franks v. Lopez (1994), 69 Ohio St.3d 345. According to the Ohio Supreme Court, the following can be nuisances: (1) corn growing in the right-of-way of the road obstructing driver visibility, Manufacturer's Natl. Bank of Detroit v. Erie Cty. Bd. of Commrs. (1992), 63 Ohio St.3d 318; (2) an overhanging tree limb impeding ordinary traffic, Robert Neff & Sons v. Lancaster (1970), 21 Ohio St.2d 31; (3) a malfunctioning traffic signal, Frankhauser v. Mansfield (1969), 19 Ohio St.2d 102; and (4) failure to maintain traffic signs already in place, Franks v. Lopez (1994), 69 Ohio St.3d 345.^[1]

Appellee argues that a political subdivision cannot be held liable for a temporary condition such as rainwater on the roadway. Ruwe v. Bd. of Springfield Twp. Trustees (1987), 29 Ohio St.3d 59 (muffler in the roadway not a nuisance); Young v. Village of Sardinia (1995), 102 Ohio App.3d 797 (temporarily illegally parked cars not a nuisance). The appellee also cites to Williams v. City of Cuyahoga Falls (1995), Summit App. No. 16981, unreported, to support this argument. In Williams, the court held that "[t]he allegation that rainwater accumulated during a rainstorm, without more, cannot raise a genuine issue of material fact regarding the existence of a nuisance." (Emphasis added.) Appellee also directs our attention to Feitshans v. Darke Cty. (Nov. 29, 1996), Darke App. No. 96-CA-1405, unreported, which concludes that in general, accumulated rainfall is not a nuisance. We agree.

However, the appellants are not arguing that the temporary natural accumulation of rainwater on the roadway on the day of the accident was the nuisance in this case. They allege that the condition of the drainage ditch, over which the county had control, see R.C. 5543.12 and R.C. 315.08, along with the rainfall, created a nuisance. In essence, they argue implicitly that the accumulation of water was not a natural condition, but rather, one caused by...