James E. Jenkins v. Harrison Township Trustees ., (board of County Commissioners of Scioto County

• Decision Date: 04 October 1982
• Docket Number: 82-LW-1156,1385
• Citation: James E. Jenkins v. Harrison Township Trustees ., (board of County Commissioners of Scioto County, 1385, 82-LW-1156 (Ohio App. Oct 04, 1982)
• Parties: JAMES E. JENKINS, ET AL., Plaintiffs-Appellees v. HARRISON TOWNSHIP TRUSTEES, ET AL., (BOARD OF COUNTY COMMISSIONERS OF SCIOTO COUNTY, Defendant-Appellant), Defendants-Appellants THE PERSONAL SERVICE INSURANCE CO., Plaintiff-Appellee v. WILBER RASE, ET AL., (BOARD OF COUNTY COMMISSIONERS OF SCIOTO COUNTY, Defendant-Appellant), Defendants-Appellants CASE
• Court: Ohio Court of Appeals

JAMES E. JENKINS, ET AL Plaintiffs-Appellees v. HARRISON TOWNSHIP TRUSTEES, ET AL., (BOARD OF COUNTY COMMISSIONERS OF SCIOTO COUNTY, Defendant-Appellant) Defendants-Appellants THE PERSONAL SERVICE INSURANCE CO. Plaintiff-Appellee v. WILBER RASE, ET AL., (BOARD OF COUNTY COMMISSIONERS OF SCIOTO COUNTY, Defendant-Appellant) Defendants-Appellants

No. 1385.

82-LW-1156 (4th)

Court of Appeals of Ohio, Fourth District, Scioto

October 4, 1982

COUNSEL FOR APPELLANT: Lynn Alan Grimshaw, Prosecuting Attorney, Harry T. Herdman, William K. Shaw, Jr., Assistant Prosecuting Attorneys, 310 Courthouse, Portsmouth, Ohio.

COUNSEL FOR APPELLEE: Jack Young, 600 National Bank, Portsmouth, Ohio (Attorney for James E. Jenkins), Michael H. Mearan, 325 Masonic Building, Portsmouth, Ohio (Attorney for the Personal Service Insurance Co.).

OPINION

ABELE J.

This is an appeal from a Scioto County Common Pleas Court judgment granting Plaintiff, a school bus driver, recovery for injuries he received when his bus overturned on a narrow county road on October 10, 1975. Plaintiff claims he notified County employees of the bad condition of the road. The County responded by grading the road on the next day. The road grader smoothed out the shoulder of the road near a deep ravine, thus cousing the shoulder to appear safe.

When Plaintiff drove his bus partially onto the shoulder to allow another vehicle to pass from the opposite direction, the shoulder collapsed and sent the bus tumbling eighteen feet down into the ravine.

The Court tried the matter on August 10, 1981. The Jury found in favor of Plaintiff. Defendants filed a combined Motion for Judgment N.O.V. and Motion for New Trial. Defendants argued the Court erred by allowing the jury to consider Plaintiff's communication to the County employees concerning the bad condition of the road surface as notice necessary to invoke Ohio Revised Code Section 305.12 liability for the road's collapse. Defendant also argued the Court erred by instructing the Jury to apply Ohio Revised Code Section 5591.36 concerning Defendants' duty to erect guardrails beside culver and perpendicular washbanks. Defendant contends the pipe underneath the road is not culvert and the ravine is not a perpendicular washbank.

On November 10, 1981, the Court overruled Defendants' Motion for Judgment N.O.V. and the Motion for New Trial. The Court did, however, decide that Defendants were correct concerning the pipe underneath the road. The Court acknowledged the Ohio Supreme Court has determined a corrugated metal pipe underneath a road is not a culvert within the contemplation of Section 5591 Riley v. McNicol (1923) 109 O.S. 29, 141 N.E. 832. The Court, however, determined the error was non-prejudicial. The Court noted the Section 5591 duty to erect guardrails beside culverts and perpendicular washbanks does apply to the case below because even though the pipe is not a culvert, the ravine is a perpendicular washbank within the contemplation of Section 559.

Defendants appeal. We affirm.

ASSIGNMENT OF ERROR I

"THE COURT ERRED IN INSTRUCTING THE JURY, INSUBSTANCE, AS TO THE PROVISION OF OHIO REVISED CODE SECTION 305.12 IN THE ABSENCE OF ANY EVIDENCE IN THE RECORD TO ESTABLISH THAT THE DEFENDANT BOARD OF COUNTY COMMISSIONERS HAVE ANY NOTICE, EITHER ACTUAL OR CONSTRUCTIVE, OF ANY ALLEGED DEFECT IN THAT HIGHWAY."

Ohio Revised Code Section 305.12 provides in part:

"the board of county commissioners may sue and be sued, plead and be impleaded in any court of judicature, bring, maintain, and defend all suits in law or in equity, involving an injury to any public, state, or county road, bridge, ditch, drain, or watercourse established by such board in its county, and for the prevention of injury thereto. The board shall be liable, in its official capacity, for damages received by reason of its negligence or carelessness in not keeping any such road or bridge in proper repair...."

Section 305.12 waives the common law doctrine of sovereign immunity for boards of county commissioners and thus must be strictly construed. Starcher v. Logsdon (1981) 66 O. St. 2d 57, 419 N.E. 2d 1089. Courts have required notice to the commissioners of defective road conditions before Section 305.12 liability can attach. Commissioners v. Black (1911) 25 cc (NS) 415, 24 CD 164, aff'd without opinion, 88 O. St. 587; Starling v. Portage County (1935) 53 O. App. 293, 4 N.E. 2d 921; Whitney v. Niehaus (1915) 4 O. App. 208.

The notice, however, need not be actual notice. Liability may exist by reason of facts and circumstances amounting to constructive notice, or upon proof that the county actively created the defective condition. See Commissioners, supra; Taylor v. Cincinnati (1944) 143 O. St. 426, 55 N.E. 2d 724; Cleveland v. Arnato (1931) 123 O. St. 575, 176 N.E. 227; Lohmann v. Cincinnati (1960) 113 O. App. 353, 173 N.E. 2d 690; Mills v. Springfield (Ohio App. 1956) 142 N.E. 2d 859.

We have reviewed the record below and find sufficient evidence to justify the jury instruction on Section 305.12 liability. Appellee testified he alerted a county road crew concerning the bad condition of the road two days prior to the accident. The county did, in fact, grade the road surface on the following day. The grading caused the road shoulder to appear safe. The jury might easily have concluded that the county's actions in grading the road shoulder constituted creation of a defective condition.

See Starling, supra. The jury might also have concluded that Appellee's notice to the road crew and Appellant's subsequent grading of the road surface constituted sufficient facts and circumstances to charge Appellant with constructive notice of the defective condition of the road which caused the accident.

Appellant's first assignment of error is overruled.

ASSIGNMENT OF ERROR II

"THE COURT ERRED IN INSTRUCTING THE JURY, IN SUBSTANCE, AS TO THE PROVISIONS OF OHIO REVISED CODE SECTION 5591.36 AS TO GUARDRAILS AT BRIDGES, VIADUCTS OR CULVERTS SINCE THE ONLY EVIDENCE IN THE RECORD ESTABLISHES THAT THIS STATUTE IS INAPPLICABLE BY REASON OF THE FACT THAT THERE WAS NO BRIDGE, VIADUCT OR CULVERT WITHIN THE MEANING OF THIS LAW AT THE PLACE OF THE ACCIDENT."

Ohio Revised Code Section 5591.36 provides in part:

"the board of county commissioners shall erect and maintain, where not already done one or more guardrails on each end of a county bridge, viaduct or culvert more than five feet high and on each side of every approach to a county bridge, viaduct, or culvert, if the approach or embankment is more than six feet high. The board shall also protect, by suitable guardrails, all perpendicular wash banks more than eight feet in height, where such banks have an immediate connection with a public highway other than state highways, or are adjacent thereto in an unprotected condition."

Appellee's witness Dave Prosch, the Chief Deputy with the Scioto County Engineer, testified that he defined a culvert as something that "would carry water from one side of the road to another one, from the ditch line on one side to, in this case, the other side." In his opinion, the pipe at the scene of the accident was a culvert.

Prior to the Motion for Judgment N.O.V. or New Trial, Appellants presented no testimony or law to the contrary. The Court did not specifically instruct the jury that the pipe was a culvert, but simply paraphrased Section 5591.56 to the jury. The jury was allowed to adopt Chief Deputy Prosch's opinion that the pipe was a culvert. With their Motion for Judgment N.O.V. or New Trial, Appellants cited Riley v McNicol (1923) 109 O.S. 29, 141 N.E. 832, which held that a corrugated metal pipe underneath a road is not a culvert. The Court below agreed with Appellant and Riley, but decided the jury instruction on Section 5591.36 caused Appellant no prejudice. We agree. The Court paraphrased Section 5591.36, but did not specifically instruct the jury that the pipe was a culvert. The...