Dunlap v. W.L. Logan Trucking Co., 03AP-463.

• Decision Date: 17 May 2005
• Docket Number: No. 03AP-463.,03AP-463.
• Citation: 2005 Ohio 2386,161 Ohio App.3d 51,829 N.E.2d 356
• Parties: DUNLAP et al., Appellees, v. W.L. LOGAN TRUCKING COMPANY et al., Appellants and Cross-Appellees; Ohio Department of Transportation, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

829 N.E.2d 356

161 Ohio App.3d 51

2005-Ohio-2386

DUNLAP et al., Appellees, v. W.L. LOGAN TRUCKING COMPANY et al., Appellants and Cross-Appellees; Ohio Department of Transportation, Appellee and Cross-Appellant.

No. 03AP-463.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided May 17, 2005.

COPYRIGHT MATERIAL OMITTED

Lane, Alton & Horst, L.L.C., Jeffrey J. Jurca, and Monica L. Miller, Columbus, for appellants and cross-appellees.

Jim Petro, Attorney General, and Peter E. DeMarco, Columbus, for appellee and cross appellant.

FRENCH, Judge.

{¶ 1} Appellants, W.L. Logan Trucking Company ("Logan"), Norman Munnal, and their insurers, Great West Casualty Company ("Great West") and Gulf Insurance Group ("Gulf"), appeal from a judgment by the Ohio Court of Claims that determined that Munnal's and Logan's negligence was partly to blame for a truck collision in an Ashland County construction zone. The court also held that appellee, the Ohio Department of Transportation ("ODOT"), negligently planned and implemented a hazardous temporary road design that contributed to the accident. ODOT has filed a cross-appeal asserting that the court erred in finding ODOT partially liable and that, instead, Munnal's negligent driving was the proximate cause of the fatal accident that gave rise to this litigation.

{¶ 2} The accident occurred on U.S. Route 30 between Interstate 71 and Wooster, Ohio. In order to undertake four miles of road improvements on one side of the four-lane divided highway, ODOT developed a design whereby both eastbound lanes would be closed and traffic rerouted to one lane of the westbound portion of the road. ODOT used signage and double yellow lines of reflective tape to separate the two lanes of traffic, thus turning the four-lane divided highway into a two-lane, two-way operation ("TLTWO").

{¶ 3} On June 19, 1998, Munnal was driving a tractor-trailer on U.S. 30 in the scope of his employment as a driver for Logan. Munnal's truck left its lane of travel and drove into oncoming traffic, forcing David Dunlap's vehicle off the road and striking Reganne Heffelfinger's vehicle head-on. Although Dunlap and his passenger, Pamela Grimm, sustained minor injuries, Heffelfinger's injuries were fatal.

{¶ 4} Heffelfinger's estate and Dunlap and Grimm initiated two separate actions against Munnal and Logan in the Summit County Court of Common Pleas. Munnal and Logan responded with a third-party complaint against ODOT, which resulted in the consolidation of the separate actions and removal of the matter to the Ohio Court of Claims. Eventually, Munnal, Logan, and their insurers settled the Heffelfinger claim for $1.4 million, of which Logan paid a $10,000 deductible. The Dunlap and Grimm claims were eventually settled for $7,500. The parties stipulated that the Heffelfinger, Dunlap, and Grimm settlements extinguished any potential liability of ODOT to Heffelfinger's estate or to Dunlap and Grimm. Thus, the only remaining claim to be tried before the Court of Claims was appellants' third-party action against ODOT for reimbursement of the insurance sums paid to Dunlap, Grimm, and the Heffelfinger estate. This action rested on the assertion that ODOT was at least partially liable for negligently designing and maintaining a hazardous road condition.

{¶ 5} In its April 2003 decision, the Court of Claims addressed the issue of ODOT's negligence. The court held:

After considering the totality of the circumstances, the evidence adduced at trial, and the relevant case law, the court finds that ODOT breached its duty to the traveling public by failing to keep the roadway free from an unreasonable risk of harm to motorists. While ODOT considered a variety of designs which called for the use of channelizing devices, it eventually decided not to implement any of them. The court finds that defendant failed to utilize some method to physically separate adjacent lanes of travel which thereby created an unreasonable risk of harm to motorists utilizing the roadways. The court further finds that such negligence was a proximate cause of the accident.

{¶ 6} The court additionally determined that Munnal had failed to sustain his burden of proof regarding his claimed defense of having been suddenly stricken by a period of unconsciousness. Instead, the court determined that Munnal knew or should have known that he had a propensity to fall asleep at unpredictable times:

This court is convinced that whether or not Munnal was aware that he suffered from sleep apnea, he was certainly aware that he had repeatedly experienced episodes of excessive sleepiness which, standing alone, would seem to this court to be an unsafe state for any commercial truck driver.

{¶ 7} Concluding that the doctrine of respondeat superior rendered Logan liable for Munnal's negligence, the court determined that Logan should receive contribution from ODOT and reduced damages by 50 percent to account for Logan's own negligence. The court thus determined that ODOT owed Logan $5,025, which was one-half of the $10,000 deductible plus Logan's filing fee.

{¶ 8} An additional issue before the court involved ODOT's argument that sovereign immunity precluded Logan and Munnal from recovering from ODOT any money paid on their behalf by Great West and Gulf. The court found:

Under R.C. 2743.02(D) and Community Ins. [Co. v. Ohio Dept. of Transp. (2001), 92 Ohio St.3d 376, 750 N.E.2d 573], Logan and Munnal's recovery in this contribution action against the state must be reduced, as a matter of law, by the insurance proceeds paid on their behalf. Such a ruling is consistent with the legislative intent to preserve public funds while providing reimbursement for an uninsured claimant.

However, with regard to the $10,000 payment made by Logan, R.C. 2743.02(D) does not apply. See Heritage Ins. Co. v. Dept. of Transp. (July 10, 2002), Franklin Ct. of Cl. No. 99-01250.¹

{¶ 9} Appellants now assign the following as error:

1. The Court of Claims erred in concluding that Great West and Gulf were not entitled to recover against ODOT for its proportionate share for the settlements paid to the plaintiffs.

2. The Court of Claims erred in concluding that W.L. Logan and Norman Munnal were contributorily negligent.

{¶ 10} ODOT's cross-appeal assigns the following as error:

Cross-Assignment of Error No. 1:

The trial court erred by failing to find that ODOT was immune from liability in making a discretionary decision on whether to use a channelizing device.

Cross-Assignment of Error No. 2:

The trial court erred in finding that ODOT negligently maintained the roadway and that it was not reasonably safe for the traveling public.

Cross-Assignment of Error No. 3:

The trial court erred for failing to find that W.L. Logan is liable for negligent hiring and entrustment.

Cross-Assignment of Error No. 4

The trial court erred by using the wrong legal standard to weigh the evidence and failed to properly apportion negligence between all parties.

{¶ 11} We will address ODOT's first and second assignments of error on cross-appeal first, as they both involve the threshold question of ODOT's liability. As we explain below, we sustain ODOT's first and second cross-assignments of error and, on these grounds, reverse the decision of the trial court.

{¶ 12} In 1975, the state of Ohio enacted R.C. 2743.02, which provides, with certain exceptions, "The state hereby waives its immunity from liability * * * and consents to be sued, and have its liability determined * * * in accordance with the same rules of law applicable to suits between private parties * * *." R.C. 2743.02(A)(1). In Reynolds v. State (1984), 14 Ohio St.3d 68, 14 OBR 506, 471 N.E.2d 776, at paragraph one of the syllabus, however, the Supreme Court of Ohio held that the state's consent to be sued preserved the state's immunity "for its legislative or judicial functions or the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion." Accordingly, with respect to actions of ODOT, Ohio courts have since held: "The issue of whether an act constitutes a mandatory duty or a discretionary act determines the scope of the state's liability because ODOT is immune from liability for damages resulting from not performing a discretionary act." Gregory v. Ohio Dept. of Transp. (1995), 107 Ohio App.3d 30, 33-34, 667 N.E.2d 1009, citing Winwood v. Dayton (1988), 37 Ohio St.3d 282, 525 N.E.2d 808; accord Garland v. Ohio Dept. of Transp. (1990), 48 Ohio St.3d 10, 548 N.E.2d 233, paragraph one of the syllabus.

{¶ 13} Further, while acknowledging the state's immunity for discretionary decision making, the Ohio Supreme Court has held that once the state makes such a basic policy decision and the state decides to engage in a certain activity or function, "the state may be held liable, in the same manner as private parties, for the negligence of the actions of its employees and agents in the performance of such activities." Reynolds, 14 Ohio St.3d 68, 14 OBR 506, 471 N.E.2d 776, at paragraph one of the syllabus. Thus, although ODOT is immune from suit for decisions characterized by the exercise of engineering judgment or discretion, once ODOT decides to use a particular traffic control device, it may be held liable for negligence in implementing its plans. See id.; Cushman v. Ohio Dept. of Transp. (Mar. 14, 1996), Franklin App. No. 95API07-844, 1996 WL 117234. To prove actionable negligence against ODOT, a plaintiff must demonstrate that ODOT owed a duty to the plaintiff, ODOT breached its duty, and the breach proximately caused the plaintiff's injuries. Id.

{¶ 14} With these principles as our guide, we look first to whether ODOT's actions at issue in this case were discretionary. In its decision, the trial court determined, as a matter of law, that ODOT was required to refer to the Ohio Manual of Uniform Traffic...