Kenneth Neiderbrach, as Administrator of the Estate of James Siler

• Decision Date: 21 July 1993
• Docket Number: 93-LW-2152,C.A. 92 CA 54
• Parties: KENNETH NEIDERBRACH, AS ADMINISTRATOR OF THE ESTATE OF JAMES SILER, Plaintiff-Appellant v. DAYTON POWER AND LIGHT COMPANY, Defendant-Appellee and LOU HAVENAR, DON HART AND WADE WESTFALL, MIAMI COUNTY COMMISSIONERS, Defendants-Appellees C.A. CASE NO.92 CA 54.
• Court: United States Court of Appeals (Ohio)

KENNETH NEIDERBRACH, AS ADMINISTRATOR OF THE ESTATE OF JAMES SILER, Plaintiff-Appellant v. DAYTON POWER AND LIGHT COMPANY, Defendant-Appellee and LOU HAVENAR, DON HART AND WADE WESTFALL, MIAMI COUNTY COMMISSIONERS, Defendants-Appellees

No. C.A. 92 CA 54.

93-LW-2152 (2nd)

Court of Appeals of Ohio, Second District Miami

July 21, 1993

T.C. CASE NO. 91-483.

CRAIG DENMEAD and DEBORAH A. BONARRIGO, 37 West Broad Street, Suite 1150, Columbus, Ohio 43215-4189, Attorneys for Plaintiff-Appellant.

JAMES R. GREENE, III, P. O. Box 8825, Dayton, Ohio 45401, DAVID C GREER and MICHAEL W. KRUMHOLTZ, 400 Gem Plaza, Third & Main Street, Dayton, Ohio 45402, Attorneys for Defendant-Appellee Dayton Power & Light Company.

JAMES D. UTRECHT, 215 West Water Street, P. O. Box 310, Troy, Ohio 45373, Attorney for Defendants-Appellees, Lou Havenar, Don Hart, Wade Westfall, Miami County Commissioners.

OPINION

WOLFF J.

Kenneth Neiderbrach, Administrator of the Estate of James Siler, appeals a summary judgment entered in favor of the Miami County Board of Commissioners (the "Board") which dismissed the Board from a wrongful death action filed against the Board and Dayton Power & Light Company ("DP&L").

On December 9, 1989, while driving westbound on County Road 30 (also named Brown Road) in Washington Township, Miami County, Ohio, James Siler skidded off the road and struck a utility pole. The pole, number 245104 L 11, was owned and maintained by DP&L and was located approximately sixteen feet three inches from the edge of the road. The road had a thirty foot right-of-way. Siler died six months later as a result of the injuries he sustained during the crash.

Neiderbrach, as Administrator of Siler's Estate, brought a wrongful death action against the Board and DP&L. The complaint alleged that the Board breached its affirmative duty to keep the road in a reasonably safe condition for travelers and free from nuisance; to provide a clear recovery zone; and to either relocate the pole or provide appropriate countermeasures to reduce the hazard. The complaint also alleged that DP&L breached its affirmative duty to erect or relocate the pole at or near the right-of-way line beyond the "Design Clear Zone".

The Board moved for summary judgment and Neiderbrach filed a cross motion for summary judgment. In its memorandum in support, the Board argued that it was exempt from liability because 1) it had no duty to relocate a pole located 16 feet 3 inches from the edge of the road and, 2) it was immune under the Political Subdivision Tort Liability Act. Neiderbrach countered that the Board had a duty, pursuant to R.C. 2744.02(B)(3), to keep the road free from nuisance, and that federal regulations pertaining to highway safety imposed upon the Board the duty to maintain a "clear zone", wider than sixteen feet from the edge of the road, which would be available for use by errant vehicles.

The trial court entered summary judgment in favor of the Board. The court did not give its rationale for finding in the Board's favor. We presume the court adopted the reasoning advanced by the Board. The judgment was certified pursuant to Civ.R. 54(B).

Neiderbrach appeals from the summary judgment entered in the Board's favor and advances two assignments of error.

FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED PREJUDICIAL-ERROR IN ITS ORDER SUSTAINING MOTION FOR SUMMARY JUDGMENT, DATED SEPTEMBER 4, 1992, WHEN IT GRANTED DEFENDANTS-APPELLEES (sic), LOU HAVENAR, DON HART, WADE WESTFALL, AS MIAMI COUNTY COMMISSIONERS', MOTION FOR SUMMARY JUDGMENT ON THE GROUND THAT DEFENDANTS-APPELLEES ARE IMMUNE FROM LIABILITY UNDER THE POLITICAL SUBDIVISION TORT LIABILITY ACT FOUND IN OHIO REVISED CODE CHAPTER 2744.

R.C. Chapter 2744, the Political Subdivision Tort Liability Act, was enacted in 1985 in response to the judicial abolishment of the doctrine of sovereign immunity. R.C. 2744.02 provides that a political subdivision is not liable for damages for injury, death, or loss to persons or property incurred in connection with the performance of a governmental or proprietary function of the political subdivision. This provision also lists several exceptions to the general grant of sovereign immunity. R.C. 2744.03 lists specific instances where the governmental entity is not liable for tort damages.

Neiderbrach argues that the Board is exempt from the general grant of immunity conferred pursuant to R.C. 2744.02(A) and is liable for tort damages pursuant to 2744.02(B)(3) which provides as follows:

(B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or propriety function, as follows:

* * *

(3) 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 subdivisions open, in repair, and free from nuisance... (Emphasis ours.)

A political subdivision includes a municipal corporation, township, county, school district, or any similar body politic responsible for governmental activities in a geographic area smaller than a state. R.C. 2744.01(F).

On appeal, Neiderbrach claims that the Board was not entitled to summary judgment on the issue of sovereign immunity because it failed to establish any of the defenses to liability enumerated in R.C. 2744.03 and therefore it was liable for tort damages under R.C. 2744.02(B)(3). We disagree.

Neiderbrach has failed to establish a colorable claim, sufficient to withstand the Board's motion for summary judgment, based on the Board's alleged violation of R.C. 2744.02(B)(3). We conclude from our review of the record that, as a matter of law, the placement of the utility pole did not constitute a nuisance and therefore, R.C. 2744.02(B)(3) is inapplicable. We reach this conclusion based On the recent case of Manufacturer's Natl. Bank of Detroit v. Erie Cty. Road Comm. (1992), 63 Ohio St.3d 318, which considered the extent of a political subdivision's duty, pursuant to R.C. 2744.02(B)(3), to keep its highways free of nuisance.

In Manufacturers', a fatal car accident occurred at a rural intersection because the northbound driver's view of westbound vehicles approaching the intersection was obstructed by corn growing in a field on the southeast corner of the intersection and partially located in the road's right-of-way. The driver sought to recover, pursuant to R.C. 2744.02(B)(3), based on the township's alleged failure to maintain the road free from nuisance.

At the time Manufacturers' was decided, no case law had developed construing R.C. 2744.02(B)(3) because of its recent enactment. Therefore, in interpreting R.C. 2744.02(B)(3), the court looked for guidance to R.C. 723.01, which obligates municipalities to keep their roads free from nuisance. The court noted that case law construing R.C. 723.01 focused on whether the alleged nuisance rendered the road unsafe for "usual and ordinary" travel and that a municipality's duty under R.C. 723.01 was not limited to physical conditions located in the roadway itself. Id. 321-322. The court considered prior cases wherein an R.C. 723.01 duty was at issue and recognized that municipalities could be liable for a nuisance if the obstruction or defect rendered the road unsafe for normal travel. Because of the similarity of language between the two statutory provisions, the court held that:

The township's duty under R.C. 2744.02(B)(3) extends to conditions in the right-of-way that directly affect the highway's safety for the regular and ordinary course of traffic. The right-of-way is appropriated for a governmental purpose related to the highway.

* * *

In determining a township's duty under R.C. 2744.02(B)(3) or a municipality's under R.C. 723.01, the focus should be on whether a condition exists within the political subdivision's control that creates a danger for ordinary traffic on the regularly travelled portion of the road. Id.

The court concluded that:

... a permanent obstruction to visibility in the right-of-way, which renders the regularly travel led portions of the highway unsafe for the usual and ordinary course of travel, can be a nuisance for which a political subdivision may be liable under R.C. 2744.02(B)(3). Id. at paragraph one of the syllabus.

Thus Manufacturers' clearly holds that, pursuant to R.C. 2477.02(B)(3), a political subdivision is liable only if the alleged...