Fankhauser v. City of Mansfield

• Decision Date: 09 July 1969
• Docket Number: Nos. 68-543-68-545,s. 68-543-68-545
• Parties: , 48 O.O.2d 103 FANKHAUSER, Exrx., Appellant, v. CITY OF MANSFIELD, Appellee. LeJEUNE, Appellant, v. CITY OF MANSFIELD, Appellee. DICKEY, Appellant, v. CITY OF MANSFIELD, Appellee.
• Court: Ohio Supreme Court

Page 102

19 Ohio St.2d 102

249 N.E.2d 789, 48 O.O.2d 103

FANKHAUSER, Exrx., Appellant, v. CITY OF MANSFIELD, Appellee.

LeJEUNE, Appellant, v. CITY OF MANSFIELD, Appellee.

DICKEY, Appellant, v. CITY OF MANSFIELD, Appellee.

Nos. 68-543-68-545.

Supreme Court of Ohio.

July 9, 1969.

Syllabus by the Court

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. (Paragraph five of the syllabus of Tolliver v. City of Newark, 145 Ohio St. 517, 62 N.E.2d 357, overruled; Imfeld v. City of Hamilton, 166 Ohio St. 11, 138 N.E.2d 649, overruled.)

Two automobiles collided at an intersection in Mansfield, Ohio, at 9:00 p. m. on August 22, 1964. An overhead electric traffic control device installed by the city at this intersection was not functioning properly at the time of the collision, traffic on one street being controlled by the usual red, yellow and green signals, while no signals were visible to traffic on the intersecting street. Plaintiffs in these three cases are the driver of one automobile (case No. 68-544), hereinafter referred to as plaintiff-driver, his passenger (case No. 68-545), hereinafter referred to as plaintiff-passenger, and the executrix of the deceased driver of the other automobile (case No. 68-543), hereinafter referred to as plaintiff-executrix.

Plaintiff-executrix alleges that her decedent entered the intersection on the green signal. Plaintiff-driver alleges that he entered the intersection in a careful and lawful manner and that the traffic signal was not functioning with regard to traffic approaching from that direction. Plaintiff-driver and his passenger were injured and plaintiff-executrix's decedent received injuries from which he died the next day, all as a result of the collision.

The petitions allege that the malfunction of the traffic signal had been reported to the defendant, city of Mansfield, approximately nine hours prior to the collision; that the defendant failed to repair the traffic signal after being notified of the dangerous condition which existed and permitted the dangerous condition to continue; that the defendant failed to put up any warning devices to advise plaintiffs and the general public that the traffic signal was not in proper working order; and that the defendant had failed regularly to inspect said traffic signal.

The petitions allege further that defendant was negligent in the manner in which the traffic signal was maintained and in permitting it to malfunction; that the defendant had created and was maintaining a nuisance at the intersection, that the street for which the signal was not functioning was not in a reasonably safe condition; and that the defendant failed to exercise due care to remedy the dangerous condition after being notified of such condition.

Defendant demurred to each of the petitions. The demurrers were sustained and the cases dismissed by the Common Pleas Court for the stated reason that the petitions did not state causes of action. The judgments were affirmed by the Court of Appeals. The causes are here on appeal pursuant to the allowance of motions to certify the records.

Ryan & Cole, James L. Ruef, Weldon, Huston & Keyser and Richard R. Fowler, Mansfield, for appellants.

Robert K. Rath, Mansfield, City Sol., for appellee.

DUNCAN, Judge.

The nature and extent of the liability of municipal corporations in Ohio has been the subject of extensive comment, both by judges and text-writers. The judicially established rule, which is based upon the traditional doctrine of sovereign immunity, is that a municipality is not liable for damages resulting from the exercise of a governmental function. Damage caused in the exercise of a proprietary function is actionable. However, this distinction has not always been a part of Ohio law. See Comm'rs of Brown County v. Butt (1826), 2 Ohio 349; Goodloe v. City of Cincinnati (1831), 4 Ohio 500; Rhodes v. City of Cleveland (1840), 10 Ohio 160; McCombs v. Town Council of Akron (1846), 15 Ohio 474; City of Dayton v. Pease (1854), 4 Ohio St. 80. Holding municipalities liable, without reference to the type function exercised, was to give way to the rule distinguishing governmental from proprietary functions. For a well-stated history of the legal metamorphosis of the rule, see Broughton v. City of Cleveland, 167 Ohio St. 29, 146 N.E.2d 301.

The experience our courts have had with the segregation of municipal activities into governmental and proprietary categories has been awkward. This legal morass is well discussed by Gibson, J., concurring in the judgment in Hack v. City of Salem, 174 Ohio St. 383, at pages 391 through 399, 189 N.E.2d 857. The reasons stated in that concurrence for the abolition of the governmental-proprietary distinction are appealing. However, the resolution of the instant cases does not require us to take up the governmental or proprietary gauntlet. For the purpose of our decision in the cases at bar, we assume that the maintenance of an overhead electric traffic signal is a governmental function, for which a municipal corporation cannot be held liable unless liability is authorized by statute.

As the governmental-proprietary distinction served to limit the tort liability of municipalities, Section 723.01, Revised Code, and its predecessors became the most popular vehicle used to bring liability to municipalities for injuries sustained due to defects in public streets. That section is as follows:

'Municipal corporations shall have special power to regulate the use of the streets. The legislative authority of such municipal corporation shall have the care, supervision, and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the municipal corporation, and shall cause them to be kept open, in repair, and free from nuisance.'

Since 1852, the principle embodied in this section has been a part of our law (50 Ohio Laws 223, 244 Section 63). The statute creates liability for the maintenance by the municipality of a nuisance, rather than liability for negligence. See Wall v. City of Cincinnati, 150 Ohio St. 411, 83 N.E.2d 389. For a discussion of the kinds of nuisance see Taylor v. City of Cincinnati, 143 Ohio St. 427, 55 N.E.2d 724, 155 A.L.R. 44.

The briefs and argument of counsel cite City of Wooster v. Arbenz, 116 Ohio St. 281, 156 N.E. 210, 52 A.L.R. 518. We are of the opinion that that case is consistent with established case law. However, in the Wooster case the court decided that the activity of physically repairing the street in order to keep it open was a governmental rather than proprietary function. In his opinion, Chief Justice Marshall stated, at page 290, 156 N.E. at page 213:

'By the weight of authority, as well as upon principle, we have reached the conclusion that streets and highways are public and governmental institutions, that in the absence of statutes there would be no liability for failure to maintain them, that it is only be reason of statutes that municipalities have been held responsible in damages for injuries caused by defects in streets, and that this statutory liability by its terms extends only to damages caused by defects in the streets themselves, and does not extend to the negligence of the agents and servants of the city while in the act of making repairs and improvements.'

By assuming the function of maintenance of traffic control signals to be governmental in the instant cases, we do not have the major problem that faced the court in the Wooster case, supra. Therefore, reference to Wooster does not aid this determination, except for the language set forth above, that 'statutory liability * * * extends only to damages caused by defects in the streets themselves.'

The sole question here is whether the facts pleaded in plaintiffs' petitions permit holding a municipality liable in the particular exercise of a governmental function.

In Imfeld v. City of Hamilton, 166 Ohio St. 11, 138 N.E.2d 649, plaintiff based his cause of action on the manner in which a traffic signal was operated, claiming that the street was not open and free from nuisance, as required by Section 723.01, Revised Code. Here, a 'T' intersection was involved. The signal device allowed vehicular traffic to proceed north at all times, and also allowed pedestrian traffic to cross the same street, from west to east, with a green signal in its favor, thereby...