Fowler v. Williams Cty. Commrs.

• Decision Date: 30 August 1996
• Docket Number: No. WM-95-034,WM-95-034
• Citation: 113 Ohio App.3d 760,682 N.E.2d 20
• Parties: FOWLER, Admr., Appellant, v. WILLIAMS COUNTY COMMISSIONERS et al., * Appellees.
• Court: Ohio Court of Appeals

Page 760

113 Ohio App.3d 760

682 N.E.2d 20

FOWLER, Admr., Appellant, v. WILLIAMS COUNTY COMMISSIONERS et al., ^* Appellees.

No. WM-95-034.

Court of Appeals of Ohio,

Sixth District, Williams County.

Decided Aug. 30, 1996.

Thomas W. Gallagher and Peter O. DeClark, Toledo, for appellant.

Gregory A. Williams, for appellees.

MELVIN L. RESNICK, Presiding Judge.

This is an appeal from a judgment of the Williams County Court of Common Pleas, which granted the summary judgment motion of defendants-appellees and dismissed plaintiff-appellant's wrongful death and survival action.

Appellant, Cynthia Fowler, administrator of the estate of William Fowler, appeals that judgment and sets forth the following assignments of error:

"I. The trial court erred in granting defendants's [sic] motion for summary judgment because defendants failed to properly place construction approach signs as mandated by the OMUTCD and are negligent per se under R.C. 2744.02(B)(5).

"II. The trial court erred as a matter of law by ruling that the defendants are immune from liability under either R.C. 2744.03(A)(3) or (5).

"III. The trial court erred in ruling that there is no evidence that the defendants acted in a wanton and reckless manner.

"IV. The trial court erred as a matter of law by failing to address appellant's nuisance claim under R.C. 2744.02(B)(3)."

During early and mid July 1993, county employees were replacing a culvert under County Road G just west of its intersection with County Road 19.50 in Williams County, Ohio. County Road G runs in an east-west direction; County Road 19.50 is a north-south route. The area in which the roads are located is rural; the roads have no artificial illumination.

In order to remove the old culvert, the workers had to dig a trench about six feet wide and six feet deep completely across County Road G. When they completed their work for the day, they would park a large, yellow John Deere backhoe on the west side of the trench so that County Road G was completely blocked. It is undisputed that Walter Schelling, the Williams County Engineer, directed his work crew to park the backhoe in such a manner.

Approximately six to seven hundred feet west of the intersection of County Roads G and 19.50 and one-tenth of a mile east of the actual construction site, the crew placed a Type III orange and white striped barricade in the westbound lane of County Road G. A "Road Closed" sign was affixed to the barricade; a night-timed flashing light was attached to the top of the barricade. A similar barricade with a "Road Closed" sign was also installed farther east on County Road G at its intersection with State Route 191.

Sometime during the evening of July 16, 1993 or the early morning hours of July 17, 1993, William Fowler drove his motorcycle into the backhoe that was parked across County Road G. When a state trooper was called to the scene at approximately 6:30 a.m. on July 17, he discovered Fowler's body slumped over his motorcycle. After examining the body, the coroner estimated that Fowler died of head injuries around 11:00 p.m. on July 16, 1993.

When he investigated the scene of the accident, the trooper observed a thirty-four foot skid mark in the westbound lane leading to the county workers' trench and a black scuff mark on the culvert in the trench. The rear of the backhoe, at the point of impact, was moved three to four feet to the west. The front portion of Fowler's motorcycle was severely damaged.

On February 18, 1994, Cynthia Fowler, William Fowler's widow and administrator of his estate, brought a wrongful death and a survival action against appellees, the Williams County Commissioners, the Williams County Highway Department, and the Williams County Engineer ("county"), and against the Springfield Township Trustees. The claim against the trustees was eventually dismissed without prejudice. She alleged that the negligent and/or willful, wanton, reckless conduct of the county was the proximate cause of William Fowler's death and the suffering he experienced just prior to his death. In particular, she claimed that the county failed to properly warn of the construction area or make it safe and created a nuisance by placing the backhoe across County Road G.

On October 10, 1995, appellees filed a motion for summary judgment contending that no questions of fact existed on the issues of whether the immunity provided by the Political Subdivision Tort Liability Act, R.C. Chapter 2744, shielded the county from liability. Appellees further argued that no question of material fact existed on the issue of whether the decedent was the sole proximate cause of the accident that resulted in his death.

Appellant filed her own motion for summary judgment, in which she maintained she was entitled to summary judgment as a matter of law because appellees were negligent per se under R.C. 2744.02(B)(5) for failure to place mandated signs at the construction area. Appellant named five different types of signs or warning devices set forth in the Ohio Manual of Uniform Traffic Control Devices ("OMUTCD") that are allegedly required when a road is closed for construction. She further argued that, assuming that the placement of construction signs and warning devices was a discretionary function, appellees were not immune under either R.C. 2744.03(A)(5) or (6) because no question of fact existed as to whether the county acted in a wanton and reckless manner. Finally, appellant contended that no question of fact existed on whether the trench in the roadway or the parking of the backhoe across the road was a "nuisance" within the meaning of R.C. 2744.02(B)(3), thereby qualifying as an exception to the general grant of immunity provided in R.C. 2744.02(A)(1).

Both appellant and appellees relied on the pleadings, answers to interrogatories, and depositions to support their motions for summary judgment. In addition, appellant offered the affidavits of her expert witness and persons who observed the construction site to present evidence of (1) the lack of warning signs near the construction area, (2) the position of the traffic barricades on County Road G, and (3) the fact that the flashers on the barricade placed at County Road G and County Road 19.50 and on the one at County Road G and State Route 191 were inoperable.

Appellees filed a motion to strike the affidavits offered by appellant. The county asserted that appellant failed to disclose the name of her expert, that the affidavits of the lay witnesses were not properly formulated, and that the statements in all affidavits were inadmissible. After the motion to strike was filed, appellant filed new affidavits for some of the lay witnesses.

On November 28, 1995, the trial court denied appellant's motion for summary judgment and granted appellees' motion for summary judgment. The court found that no question of fact existed on the issue of whether the county was immune from liability under R.C. Chapter 2744.

The standard which this court must apply in considering appellant's four assignments of error is found in Civ.R. 56(C) which reads, in part:

"Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."

The party moving for summary judgment is required to "specifically delineate the basis upon which summary judgment is sought in order to allow the opposing party with a meaningful opportunity to respond." Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 526 N.E.2d 798, syllabus. If the movant supports his motion with appropriate evidentiary materials, the nonmovant cannot merely rest upon the allegations and/or denials contained in the pleadings. He must present evidence which demonstrates the existence of a genuine issue of material fact. Morehead v. Conley (1991), 75 Ohio App.3d 409, 411, 599 N.E.2d 786, 787-788.

On appeal of an order granting or denying summary judgment, an appellate court applies the above standards in a de novo review of the record. See Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1157-1158.

Before moving to a discussion of the propriety of the trial court's grant of summary judgment in favor appellees, we note that the record contains no evidence that the trial court ruled on appellees' motion to strike the affidavits filed by appellant. Accordingly, we presume that the motion was overruled. See State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 223, 631 N.E.2d 150, 154-155; Newman v. Al Castrucci Ford Sales (1988), 54 Ohio App.3d 166, 169, 561 N.E.2d 1001, 1004. Further, contrary to appellees' assertions, those affidavits which needed to be re-executed are in proper form and based upon the personal knowledge of the affiants. We shall therefore consider these affidavits in our determination of this appeal.

All four of appellant's assignments of error deal with the trial court's finding of immunity under R.C. Chapter 2744. The statutory law governing all four assignments is as follows.

R.C. 2744.02(A)(1) states, in part:

"Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by...