Jones v. Shelly Co.

• Decision Date: 21 September 1995
• Docket Number: No. 48,48
• Citation: 106 Ohio App.3d 440,666 N.E.2d 316
• Parties: JONES, Appellant, v. SHELLY COMPANY et al., Appellees. CA 1994.
• Court: Ohio Court of Appeals

Page 440

106 Ohio App.3d 440

666 N.E.2d 316

JONES, Appellant, v. SHELLY COMPANY et al., Appellees.

No. 48 CA 1994.

Court of Appeals of Ohio,

Fifth District, Fairfield County.

Decided Sept. 21, 1995.

Ralph C. Buss, Painesville, for appellant.

Theodore M. Munsell, Cynthia L. Sands, Douglas J. Suter and Robert J. Behal, Columbus, for appellees.

WILLIAM B. HOFFMAN, Judge.

Plaintiff-appellant John Jones appeals the Fairfield County Court of Common Pleas' grant of summary judgment in favor of defendants-appellees Shelly Company, Highway Traffic Control, Inc., Fairfield County, Fairfield County Commissioners, and Robert Reef, the Fairfield County Engineer. ¹

On July 6, 1990, appellant was injured when the motorcycle he was operating collided with an advance warning construction sign erected on Hamburg Road in Fairfield County, Ohio. At approximately 10:30 p.m. on that evening, appellant was traveling southbound on South Broad Street in Fairfield County, Ohio. South Broad Street branches into a Y-split, with State Route 793 continuing to the left and Hamburg Road continuing to the right. Appellant approached the Y-split and traveled to the right, proceeding southbound on Hamburg Road.

Two advance warning signs are involved in this matter. The first, an OW-120 "Road Closed Ahead" sign ("OW-120 sign"), was placed approximately two hundred thirty-eight feet north of the Y-split. The OW-120 sign was erected on July 5, 1990. It was three feet by three feet in size, bright orange and reflectorized. Appellant claims that he never saw this first advance warning sign.

The geographical location of the second advance warning sign, an R-76A "Road Closed 1/10 Miles Ahead Local Traffic Only" sign ("R-76A sign"), is in dispute. Appellant claims that the R-76A sign was placed twenty to thirty feet south of the Y-split. Appellees Shelly Company and Highway Traffic Control, Inc. claim in their briefs that the R-76A sign was located at the Y-split. However, appellees fail to provide citations to what evidentiary material in the record support this claim. The claim seems to be based on the affidavit of appellees' expert witness Jack Holland. However, this claim is ambiguous and tenuous at best. Nevertheless, when applying Civ.R. 56 standards that the evidence must be viewed in the light most favorable to the nonmoving party (appellant), at a minimum, a genuine dispute of material fact exists as to the geographical location of the sign.

In addition, there is a genuine dispute regarding whether the R-76A sign was properly reflectorized in accordance with Ohio Manual of Uniform Traffic Control Devices ("OMUTCD") Sections 7F-2 and 7F-4. While appellant claims that the sign was not properly illuminated, the appellees claim that it was properly reflectorized and had a flashing light on top. Further, the parties disagree as to whether overhanging tree branches and foliage blocked the view of the R-76A sign from the approximate location of the OW-120 sign. Appellant claims that his view was obstructed in this fashion, whereas the appellees claim that appellant's testimony indicates that the view was unobstructed. The parties do agree that the R-76A sign was white and five feet by three feet in size.

Appellant claims that he was unable to see the R-76A sign until he was twenty to thirty feet away from it. He claims that the sign was blocking the "entire southbound lane and middle of the roadway," forcing him to attempt to go around the sign on the left. Appellant was unsuccessful in this attempt and sustained injuries when his motorcycle collided with the R-76A sign.

Appellant filed a complaint in the Fairfield County Court of Common Pleas, alleging that each appellee was negligent in the design, construction, maintenance, improvement and/or supervision of the OW-120 and R-76A signs and that this negligence created a nuisance which proximately caused appellant's injuries. ² Arguing that they are immune from liability under R.C. Chapter 2744, the Political Subdivision Tort Liability Act, appellees Fairfield County, Ohio, Fairfield County Commissioners, and Robert Reef, Fairfield County Engineer ("the Fairfield County appellees") moved for summary judgment in their favor on April 29, 1994. On May 9, 1994, appellee Shelly Company filed its motion for summary judgment, on the basis that its alleged design, construction, maintenance and/or supervision of the OW-120 and R-76A signs were neither negligent nor a nuisance. Appellee Highway Traffic Control, Inc., filed a motion for summary judgment on similar grounds on May 6, 1994.

On June 7, 1994, appellant filed a motion for continuance of the summary judgment proceedings. Appellant further moved to strike the affidavit of Jack Holland, an expert witness for the appellees. In response, the trial court set all motions for hearing on June 24, 1994. On that date, the trial court overruled appellant's motion for continuance and motion to strike. On June 28, 1994, the trial court granted each of the appellees' motions for summary judgment. It is from this order that appellant appeals, raising the following assignments of error:

"I. The trial court erred in granting the motions for summary judgment of defendants Shelly Company and Highway Traffic Control, Inc.

"II. The trial court erred in granting the motion for summary judgment of defendants Fairfield County, Fairfield County Commissioners, and Fairfield County Engineer Robert Reef.

"III. The trial court abused its discretion in denying the plaintiff's motion for continuance of summary judgment proceedings pursuant to Civ.R. 56(F).

"IV. The trial court abused its discretion in denying plaintiff's motion to strike the affidavit of Jack Holland."

We will address the second assignment of error first.

Appellant seeks to impose liability on the Fairfield County appellees for their allegedly negligent design, construction and maintenance of the OW-120 and R-76A advance warning construction signs. In particular, appellant claims that the OW-120 sign created a nuisance because it was the "wrong sign in the wrong location" under the OMUTCD. Further, appellant asserts that the R-76A sign constituted a nuisance because (1) it was improperly placed twenty to thirty feet south of the Y-split; ³ (2) it was improperly erected in the middle of the southbound lane; ⁴ (3) it was inadequately reflectorized; and (4) it was obstructed by overhanging tree branches and foliage, all in violation of the OMUTCD. Appellant argues that these factors in combination with the sudden curve in Hamburg Road created a nuisance which proximately caused his injuries.

The Fairfield County appellees respond that they are immune from liability under R.C. Chapter 2744, the Political Subdivision Tort Liability Act, because their acts and omissions with regard to these signs are "governmental functions" as defined in R.C. 2744.01(C) and that the "discretion" defenses of R.C. 2744.03(A)(3) and (5) apply.

When reviewing on appeal a trial court's ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 30 OBR 78, 78-79, 506 N.E.2d 212, 214-215. See, also, Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 66 O.O.2d 311, 309 N.E.2d 924.

R.C. Chapter 2744 provides a three-tiered analysis for determining the availability of sovereign immunity to political subdivisions. R.C. 2744.02(A)(1) provides that a political subdivision is generally not liable for injury, death or loss to persons or property incurred in connection with the performance of a governmental or proprietary function of that political subdivision. This provision is generally referred to as the "blanket immunity" provision.

R.C. 2744.02(B) then lists five exceptions to the blanket immunity provision. The subsection relevant herein is R.C. 2744.02(B)(3), which provides that:

"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 subdivision open, in repair, and free from nuisance." (Emphasis added.)

However, R.C. 2744.03 then goes on to enumerate defenses that can be asserted by a political subdivision to avoid liability. R.C. 2744.03(A)(3) and (5) are relevant to the instant case.

R.C. 2744.03(A)(3) grants immunity to a political subdivision where the act or failure to act by an employee was within the discretion of the employee as to "policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee." R.C. 2744.03(A)(5) provides that a political subdivision is immune from liability if the injury "resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources, unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner." In Scheck v. Licking Cty. Commrs. (July 18, 1991), Licking App. No. CA-3573, unreported, 1991 WL 148100, this court previously held that the "discretionary" defenses set forth in R.C. 2744.03(A)(3) and (5) do not provide immunity where the allegedly negligent act of the political subdivision constitutes a nuisance under R.C. 2744.02(B)(3). We find the reasoning in Scheck to be persuasive and reaffirm that decision here.

It is undisputed that the Fairfield County appellees, as political subdivisions performing governmental functions, are initially provided sovereign immunity under the blanket immunity provision, R.C. 2744.02(A). They lose their immunity only if the allegations set forth by the appellant with regard to the OW-120 and R-76A advance warning construction signs constitute a nuisance under ...