Pelletier v. City of Campbell
| Decision Date | 07 December 2016 |
| Docket Number | No. 15 MA 0220.,15 MA 0220. |
| Citation | 2016 Ohio 8097,75 N.E.3d 779 |
| Parties | Judith PELLETIER, Plaintiff–Appellee, v. City of CAMPBELL, et al., Defendants–Appellant. |
| Court | Ohio Court of Appeals |
Gregg A. Rossi, Youngstown, OH, for Plaintiff–Appellee.
Gregory A. Beck, Tonya J. Rogers, North Canton, OH, for Defendant–Appellant.
{¶ 1} Defendant–Appellant, City of Campbell, appeals the judgment of the Mahoning County Common Pleas Court denying its motion for summary judgment.
{¶ 2} On August 22, 2013, Plaintiff–Appellee, Judith Pelletier, was traveling on Sanderson Avenue in the City of Campbell on her way to an orientation in connection with her employment. (Pelletier Dep. 14). At the intersection of Sanderson and 12th Street, there was a stop sign for those traveling on Sanderson. (Pelletier Dep. 14). Appellee claims she did not see the stop sign because her view of the stop sign was blocked by foliage. (Pelletier Dep. 14–15). Appellee says she also did not see a vehicle traveling on 12th Street approaching the intersection with Sanderson. (Pelletier Dep. 15). She did not slow down. Id. She entered the intersection and collided with the other vehicle. (Pelletier Dep. 15). Appellee testified that she previously had never traversed this intersection. (Pelletier Dep. 16–17). After she collided with the other vehicle, the other vehicle rolled over. (Pelletier Dep. 17). The speed limit on Sanderson is 25 miles per hour. (Pelletier Dep. 17). Appellee claims that as a result of the collision she was injured. Photos of the scene and the vehicles were taken and are part of the record. (Pelletier Dep. Exhibits A–E).
{¶ 3} On March 19, 2014, Appellee filed an action in tort against Appellant. Also named as defendants were Danny Saulsberry, Bank of New York Mellon, and Safeguard Properties, LLC. Allstate Insurance Company was later joined as a party defendant. Appellee's tort action against Appellant is based on her claim that the foliage impaired her ability to see the stop sign. Appellee claims that Appellant had a duty to remove the foliage and to maintain the stop sign so that it was visible to motorists approaching the stop sign.
{¶ 4} On April 30, 2015, Appellant filed a motion for summary judgment arguing that Appellee could not recover against it because Appellant is entitled to governmental immunity. The motion was thoroughly briefed by the parties. The trial court denied Appellant's motion for summary judgment on November 25, 2015. Appellant filed a timely appeal. The parties agree that this court has jurisdiction to hear this appeal pursuant to R.C. 2744.02(C).
{¶ 5} Appellant's sole assignment of error states:
THE TRIAL COURT ERRED WHEN IT OVERRULED THE APPELLANT'S MOTION FOR SUMMARY JUDGMENT AND DENIED THE APPELLANT THE BENEFIT OF GOVERNMENTAL IMMUNITY, TO APPELLANT'S PREJUDICE, (Judgment Entry, November 25, 2015).
{¶ 6} An appellate court reviews the granting of summary judgment de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Thus, we shall apply the same test as the trial court in determining whether summary judgment was proper.
{¶ 7} A court may grant summary judgment only when (1) no genuine issue of material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) the evidence can only produce a finding that is contrary to the non-moving party. Mercer v. Halmbacher, 2015-Ohio-4167, 44 N.E.3d 1011, ¶ 8 ; Civ.R. 56(C). The initial burden is on the party moving for summary judgment to demonstrate the absence of a genuine issue of material fact as to the essential elements of the case with evidence of the type listed in Civ.R.56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). If the moving party meets its burden, the burden shifts to the non-moving party to set forth specific facts to show that there is a genuine issue of material fact. Id.; Civ.R.56(E). "Trial courts should award summary judgment with caution, being careful to resolve doubts and construe evidence in favor of the nonmoving party." Welco Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346, 617 N.E.2d 1129 (1993).
{¶ 8} Appellant claims the trial court erred in not granting its motion for summary judgment because it is entitled to governmental immunity. The sovereign immunity statute is a deliberate attempt to limit the liability of political subdivisions for injuries and deaths occurring on their roadways. Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, ¶ 16. The availability of immunity is a question of law properly determined by the court prior to trial. Conley v. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992). Determining whether a political subdivision is immune from tort liability involves a three-tiered analysis. Rastaedt v. Youngstown, 7th Dist. No. 12 MA 0082, 2013-Ohio-750, 2013 WL 793597, ¶ 10 ; Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7. Appellant's assignment of error addresses only the second tier of this analysis. The parties agree as to the first tier and Appellant does not claim any error by the trial court with regard to the third tier.
{¶ 9} The first tier involves a determination of whether or not the alleged wrongful conduct is a governmental or proprietary function. R.C. 2744.02(A) ; Baker v. Wayne Cty., 147 Ohio St.3d 51, 2016-Ohio-1566, 60 N.E.3d 1214, ¶ 11. The parties do not dispute that the alleged wrongful conduct here constitutes a governmental function. Thus, Appellant enjoys the protection of sovereign immunity pursuant to R.C. 2744.02(A).
{¶ 10} The second tier requires that we consider if there is an exception to Appellant's sovereign immunity. There are five possible exceptions. The exceptions are set forth in R.C. 2744.02(B). Appellant argues that none of the exceptions apply. Appellee asserts that the exception set forth in R.C. 2744.03(B)(3) is applicable. That section provides, in part:
political subdivisions are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads * * *
{¶ 11} Appellee asserts that Appellant failed to keep its public road in repair and otherwise failed to remove an obstruction from its public road. "Public roads" are defined in R.C. 2744.01(H) :
"Public roads" means public roads, highways, streets, avenues, alleys, and bridges within a political subdivision. "Public roads" does not include berms, shoulders, rights-of-way, or traffic control devices unless the traffic control devices are mandated by the Ohio manual of uniform traffic control devices.
{¶ 12} We must accept the definition of "public roads" provided by the General Assembly. Baker at ¶ 13. If the stop sign here is mandated by the Ohio Manual of Uniform Traffic Control Devices ("OMUTCD"), it is, by definition, a "public road" and it must be kept in repair and free from obstructions. R.C. 2744.01(H) ; R.C. 2744.03(B)(3) ; Yonkings v. Piwinski, 10th Dist. Nos. 11AP–07, 11AP–09, 2011-Ohio-6232, 2011 WL 6036950, ¶ 22–24. If it is not, it does not fall under the definition of a public road. In this event, Appellant would be entitled to immunity and summary judgment should be granted in its favor.
{¶ 13} The 2012 version of the OMUTCD, like the prior versions, contains headings to classify the nature of the text that follows. OMUTCD Section 1A.13 provides the definitions for headings, words, and phrases used in the manual. There are four headings—Standard, Guidance, Option, and Support. Text classified as Standard includes a "required, mandatory, or specifically prohibited practice regarding a traffic control device." OMUTCD, Section 1A.13(A). The definition notes that the verb "shall" is typically used and that the text appears in bold type. Id.
{¶ 14} OMUTCD, Section 2B.05, titled "STOP Sign (R1–1) and ALL WAY Plaque (R1–3P)", appears under the Standard heading, is in bold type, and is thus considered mandatory. It provides, in part, that when it is determined that a full stop is always required on approach to an intersection a stop sign shall be used.
{¶ 15} Appellant does not assert that the stop sign here is anything but a public road as defined in R.C. 2744.03(B)(3) and R.C. 2744.01(H). Thus, Appellant can be held liable and is not entitled to immunity if it failed to keep its stop sign in repair and/or failed to remove obstructions. Appellant argues that, by definition, the foliage which allegedly interfered with Appellee's view of the stop sign here is not an obstruction and/or the stop sign was not in disrepair as required by R.C. 2744.02(B)(3).
{¶ 16} Appellant refers to a number of cases which have addressed the meaning of the phrase "obstructions from public roads." Appellant initially draws our attention to Howard, 119 Ohio St.3d 1, 891 N.E.2d 311. Unlike here, Howard did not involve a mandated traffic control device. Rather, the issue presented was a narrow one—did the accumulation of ice on a roadway constitute an "obstruction" within the meaning of R.C. 2744.02(B)(3). Id. at ¶ 1.
In Howard, the Supreme Court noted that the legislature did not define "obstruction" in the statute and that the Supreme Court, prior to Howard, also had not defined the term. Id. at ¶ 19. The Court discussed a number of dictionary definitions for the term. Id. at ¶ 21. However, the Supreme Court rejected the appellate court's interpretation of the meaning of the term obstruction as anything that has the potential of interfering with the public's safe use of the roadway. Id. at ¶ 22. The Supreme Court came to its conclusion after analyzing the history of the statute and the fact that the legislature removed from the statute the term "nuisance." Id. at ¶ 23–30. The Court concluded that the intent of the change in the statute was to limit the liability of political subdivisio...
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...version of the OMUTCD, like the prior versions, contains headings to classify the nature of the text that follows." Pelletier v. Campbell , 2016-Ohio-8097, 75 N.E.3d 779, ¶ 13. "OMUTCD Section 1A.13 provides the definitions for headings, words, and phrases used in the manual. There are four......
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