Mary M. Feitshans v. Darke County, Ohio
| Decision Date | 29 November 1996 |
| Docket Number | 96-CA-1405,96-LW-4506 |
| Parties | MARY M. FEITSHANS, et al., Plaintiffs-Appellants v. DARKE COUNTY, OHIO, et al., Defendants-Appellees Case |
| Court | Ohio Court of Appeals |
Patrick W. Allen, S.C. Regis. No. 0014394, E.S. GALLON & ASSOCIATES 40 West Fourth Street, #1100, Dayton, Ohio 45402-1854, Attorney for Plaintiffs-Appellants
Douglas C. Boatwright, S.C. Regis. No. 0042489, and Douglas J. Suter, S.C. Regis. No. 0040288, 250 E. Broad Street, Suite 900, Columbus, Ohio 45315, Attorneys for Defendants-Appellees
Plaintiff-appellants Mary and Jeff Feitshans appeal from the decision of the Darke County Court of Common Pleas granting defendant-appellees', Darke County, Ohio, Darke County Commissioners, and Darke County Engineer, motion for summary judgment. The case arose out of a one car accident that occurred on Horatio-Harris Creek Road in Darke County on the morning of Friday, July 31, 1992.
For a fourteen hour period between the afternoon of July 30 and the morning of July 31, Darke County suffered a heavy thunderstorm, which caused severe flooding throughout central Darke County. The Darke County Sheriff's Office received complaints about high water on county roads, including several points on Horatio-Harris Creek Road. In response to the complaints, the Drake County Road Superintendent, Joe Van Hickle, posted "High Water" signs on both sides of the road to warn approaching motorists. However, at the intersection of Horatio-Harris Creek Road and Horatio-New Harrison Road, Hickle posted a sign only for westbound traffic at one spot. The Darke County Engineer's employees patrolled the areas searching for high water spots, responding to complaints, and posting signs until approximately 1:00 a.m. on July 31, when the complaints stopped coming in. The storm apparently continued until about 8:00 a.m.
At about 10:30 a.m. on July 31, Mary Feitshans was traveling eastbound on Horatio-Harris Creek Road. Mary Feitshans saw water in her lane ahead of her, but saw no signs indicating that it was high water. Because another vehicle, a semi with a trailer, was traveling in the eastbound lane, Feitshans attempted to drive through the water. The water was deeper than she had anticipated and it caused her to lose control of her car and to crash into a tree. After it was notified of the accident, the Darke County Engineer's Office placed high water signs at the scene and examined the culvert and drainage basin that were designed to control the flow of rain water on the road. The employees found the drainage system to be unblocked but inadequate to handle the amount of water that the storm had brought.
Mary Feitshans brought suit against the defendants for her injuries. Her husband, Jeff Feitshans also brought a claim for loss of consortium. The defendants filed a joint motion for summary judgment, and the court granted it. The Feitshans brought this timely appeal. They assert the following assignment of error:
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFFS-APPELLANTS IN GRANTING THE MOTION FOR SUMMARY JUDGMENT FILED BY THE DEFENDANTS, DARKE COUNTY, OHIO, DARKE COUNTY COMMISSIONERS, AND DARKE COUNTY ENGINEER.
Summary judgment can be rendered to the moving party only upon a showing that (1) there is no genuine issue of material fact, (2) reasonable minds in construing the evidence most strongly in favor of the non-moving party can come to but one conclusion and that conclusion is adverse to the non-moving party, and (3) the moving party is entitled to summary judgment as a matter of law. Civ.R. 56 (C); see also Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46. Although Appellants bring only this one assignment of error, their argument in support of it raises two distinct issues. First, they argue that they raised genuine issues of material fact pertaining to duty, breach, and causation, such that summary judgment was inappropriate. Second, they argue that the trial erred in its determination that the defendants were protected by sovereign immunity. Because we find it dispositive, we address only the second argument.
II.
Appellees contend that they are immune from liability for Mary and Jeff Feitshans's injuries by virtue of the Political Subdivision Tort Liability Act ("the Act"), codified at Chapter 2744 of the Ohio Revised Code. Prior to the Act, which became effective in 1989, the doctrine of sovereign immunity was primarily a creature of the courts. With respect to municipalities, its applicability was dependent upon archaic and esoteric distinctions, and it yielded inconsistent and unprincipled decisions. Haas v. Akron (1977), 51 Ohio St.2d 135, 140, 5 O.O.3d 110, 113, 364 N.E.2d 1376, 1379 (Brown, J., dissenting); Hack v. Salem (1963), 174 Ohio St. 383, 391, 23 O.O.2d 34, 38 (Gibson, J., concurring in judgment); see also Comment, The Political Subdivision Tort Liability Act: A Legislative Response to the Judicial Abolishment of Sovereign Immunity, 55 U. Cin. L. Rev. 501, 501 (1986); Comment, The Role of the Ohio Supreme Court in Opening the Courtroom Doors to Tort Victims, 55 U. Cin. L. Rev. 477, 484 (1986).
In 1982, the Ohio Supreme Court abrogated the judicial doctrine of sovereign immunity as it related to municipalities. Haverlock v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 30, 442 N.E.2d 749, 752. The following year, the Court, while reaffirming Haverlock's rejection of municipal immunity generally, held that municipal immunity was not abrogated as to acts or omissions that go to the essence of governing or that are the subject of statutory immunity. Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St.3d 31, 35, 6 OBR 53, 56, 451 N.E.2d 228, 232. The Act generally restores immunity for all political subdivisions. See 2744.01 (F). It reads in relevant 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 any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.
R.C. 2744.02 (A) (1).
Thus, the Act provides that political subdivisions are, absent an exception, immune from tort liability. The statute enumerates five exceptions to immunity from tort actions. See R.C. 2744.02 (B) (1)-(5). These exceptions include liability for failure to keep public passages free from nuisances and liability for harm resulting from the negligent performance of proprietary functions. See R.C. 2744.02 (B) (2), (3). Even if a claim alleges that the subdivision is liable under one of the exceptions, the Act provides several defenses and immunities that may nevertheless apply to defeat the tort claim. See R.C. 2744.03.
In order to determine whether summary judgment was appropriately granted by the trial court, we must first consider the applicability of the Act to this case. A political subdivision's immunity from suit is purely a question of law and is, accordingly, to be determined by the court. Conley v. Shearer (1992), 64 Ohio St.3d 284, 292, 595 N.E.2d 862, 869.
The actions of the Darke County officials named as defendants are veiled in immunity as long as their actions were "performed in connection with a governmental or proprietary function" and do not come under a statutory exception to immunity. Appellants first seem to assert that the posting of temporary "high water" signs on roadsides does not constitute a "governmental function" under the statutory definition, as it has been interpreted by Ohio courts, and that, accordingly, the statutory immunity is not applicable. Second, Appellants contend that at least one of the exceptions stated in R.C. 2744.02 applies to frustrate Appellees' claim to immunity. Finally, Appellants argue that they have raised a genuine issue of material fact with respect to whether the County and its employees acted in a wanton or reckless manner under R.C. 2744.03 (A) (5). We will address these arguments individually.
A. Governmental Function. R.C. 2744.01 (C) (2).
The statute's definition of a "governmental function" expressly includes "the erection or nonerection of traffic signs." R.C. 2744.01 (C) (2) (j). Accordingly, the immunity granted by R.C. 2744.02 (A) (1) protects the county from liability for injuries sustained in connection with its performance of its governmental function of erecting signs, absent a relevant exception under R.C. 2744.02 (B). However, Appellants argue that the erection of signs contemplated by the statute does not extend to temporary warning signs such as the high water signs at issue in this case.
Appellants contend that Ohio courts have made a distinction between traffic control systems and temporary traffic signs, on the basis that while the erection of the former involves discretionary planning decisions, the posting of the latter does not. Appellants point to the Ohio Supreme Court's decisions in Franks v. Lopez (1994), 69 Ohio St.3d 345, 632 N.E.2d 502, motion for reconsideration denied (1994), 69 Ohio St.3d 1483, and Winwood v. Dayton (1988), 37 Ohio St.3d 282, 525 N.E.2d 808, to support this position. In Franks, the Court addressed the extent of a political subdivision's liability for failing to keep its roadways "free from nuisance" under R.C. 2744.02 (B) (3). 69 Ohio St.3d at 346, 632 N.E.2d at 503. More precisely, the Court considered whether the statutory definition of "nuisance" encompasses the failure to erect signs. The appellant-plaintiffs in Franks asserted that the lack of an adequate warning sign, among several other factors, created a nuisance on a curving section of road.
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