Perkins v. Ohio Dept. of Transp.

• Decision Date: 05 December 1989
• Docket Number: 88AP-511,Nos. 88AP-510,s. 88AP-510
• Citation: 65 Ohio App.3d 487,584 N.E.2d 794
• Parties: PERKINS, Admx., Appellant, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellee. * UTTER, Admx., Appellant, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellee.*
• Court: Ohio Court of Appeals

Page 487

65 Ohio App.3d 487

584 N.E.2d 794

PERKINS, Admx., Appellant, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellee. ^*

UTTER, Admx., Appellant, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellee.*

Nos. 88AP-510, 88AP-511.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided Dec. 5, 1989.

Joseph W. Alig; Heuck & Ganson and Kenneth Heuck, Jr., for appellant Cynthia Perkins.

Don W. Ziglar, for appellant Marcia Utter.

Anthony J. Celebrezze, Jr., Atty. Gen. and William J. McDonald, for appellee.

STRAUSBAUGH, Judge.

This is an appeal by plaintiffs, as administratrices of their husbands' estates, from a judgment of the Court of Claims rendering a verdict in favor of defendant on the issue of negligence arising out of an automobile accident in which plaintiffs' husbands were killed. Plaintiffs' appeals were consolidated for trial.

The accident in the present case occurred at the intersection of State Routes 590 and 105, which are both two-lane, rural roads in Ottawa County. State Route 590 runs in a north-south direction and intersects with State Route 105 which runs east-west. State Route 590 has stop signs at the intersection while State Route 105 has no such traffic control devices. On July 2, 1983, the weather was clear and sunny and the pavement was dry. At approximately 10:30 a.m., Gary Perkins was driving a pickup truck west on State Route 105 with two passengers, John Utter and a third passenger not a party to this action. Donald Weinandy, accompanied by passenger James Williamson, was driving a large step-van north along State Route 590. Heading south on State Route 590 and stopped at the intersection was a pickup truck driven by a man named Lipstraw, who was signalling to make a left turn onto eastbound State Route 105. As Weinandy approached the intersection with State Route 105, he apparently failed to observe the stop sign and warning signs preceding the intersection and continued into the intersection, striking the Perkins vehicle and causing it to hit the Lipstraw vehicle. As a result of Weinandy's vehicle running the stop sign, Lipstraw, Perkins, Utter and the third passenger in the Perkins vehicle were all killed.

On June 28, 1985, plaintiffs on behalf of the estates of Gary Perkins and John Utter filed separate actions against defendant, the Ohio Department of Transportation, alleging negligence. On April 29, 1987, both cases were consolidated for trial. An entry was subsequently entered on September 17, 1987, bifurcating the issues of liability and damages. In preparation for trial, plaintiffs took depositions throughout the months of October and November 1987. Plaintiffs supplemented their interrogatories on October 30, 1987. Defendant then filed a motion in limine on November 5, 1987, requesting that the trial court exclude the testimony of two of plaintiffs' three expert witnesses, Tom Huston and Joseph Treiterer, on the basis of unfair surprise. Subsequently, the trial court granted defendant's motion excluding the testimony of two of plaintiffs' experts. On November 27, 1987, defendant then filed a motion to quash information collected as part of a federal hazard elimination program, which was granted by the trial court.

The case was then tried before the Court of Claims beginning on November 30, 1987 and continuing through December 2, 1987. On May 2, 1988, the trial court entered judgment in favor of defendant.

On appeal, plaintiffs assert five assignments of error for our review:

"1. The trial court erred to the prejudice of the plaintiffs by finding that the defendant was not negligent.

"2. The trial court erred to the prejudice of the plaintiffs by finding that the defendant's negligence was not one of the proximate causes of the accident.

"3. The trial court erred by granting defendant's motion in limine limiting plaintiffs' expert witnesses to testify.

"4. The trial court erred by failing to allow expert opinion testimony.

"5. The trial court erred by failing to allow testimony of prior incidents of drivers going through the northbound stop sign on S.R. 590 as to notice of dangerous conditions."

Under their first assignment of error, plaintiffs argue that the trial court erred by finding that defendant was not negligent since defendant failed to comply with the specifications which it has set forth governing the design and usage of traffic control devices. Plaintiffs point out basically five instances in which defendant breached its duty to properly place and maintain traffic signs in accordance with its own specifications. As a result, plaintiffs argue that defendant failed to provide adequate warnings to drivers due to the improper placement and distance of signs and the foreseeable distractions preceding the intersection.

Pursuant to its statutory duty imposed by R.C. 4511.09, defendant has adopted a Manual of Uniform Traffic Control Devices for Streets and Highways ("manual"). R.C. 4511.10 provides in pertinent part that "[t]he department of transportation may place and maintain traffic control devices, conforming to its manual and specifications, upon all state highways as are necessary to indicate and to carry out sections 4511.01 to 4511.78 and 4511.99 of the Revised Code, or to regulate, warn, or guide traffic." (Emphasis added.) R.C. 4511.11(D) specifically states that "[a]ll traffic control devices erected on a public road, street, or alley, shall conform to the state manual and specifications." (Emphasis added.) Not all portions of the manual regarding the placement and maintenance of traffic control devices are mandatory, thereby leaving some areas within the discretion and engineering judgment of defendant. However, where the defendant chooses to act, it is under a duty to conform with the requirements of its own manual. See Pierce v. Ohio Dept. of Transp. (1985), 23 Ohio App.3d 124, 23 OBR 235, 491 N.E.2d 729; R.C. 4511.10 and 4511.11. See, also, Reynolds v. State (1984), 14 Ohio St.3d 68, 14 OBR 506, 471 N.E.2d 776, paragraph one of the syllabus.

The foregoing is in accord with Section 1C of the manual, which provides in pertinent part:

"The decision to use a particular device at a particular location should be made on the basis of an engineering study of the location. Thus, while this Manual provides standards for design and application of traffic control devices, the Manual is not a substitute for engineering judgment. Except for sections of this Manual that mandate the installation of a traffic control device, it is the intent that the provisions of this Manual be standards for traffic control device installation, but not a requirement for installation. Qualified engineers are needed to exercise the engineering judgment inherent in a selection of traffic control devices, just as they are needed to locate and design the roads and streets which the devices complement. * * * " (Emphasis added.)

The Supreme Court in Winwood v. Dayton (1988), 37 Ohio St.3d 282, 525 N.E.2d 808, cited this section and held that a municipal decision regarding the installation of a traffic light at an intersection was one " * * * requiring the consideration of basic policy and the exercise of independent judgment." Id. at 284, 525 N.E.2d at 810. The court held that the city could not be held liable for a decision not to install a traffic signal at an intersection since such a decision was a discretionary government function. However, in a footnote the court stated that there existed " * * * no evidence in the record that any traffic control device was mandated by the manual at the intersection in question." Id. at 285, 525 N.E.2d at 811, fn. 2. It would appear from this statement that had the court been presented with evidence that a traffic control device was required at the intersection, the court's decision may have been otherwise.

The record in the present case indicates that a vehicle traveling north on State Route 590, approaching the intersection with State Route 105, would first pass a "route junction" sign, approximately five hundred forty-six feet from the stop sign located at the intersection. The vehicle would then pass a "stop ahead" sign, approximately four hundred sixty feet from the stop sign, and then a destination sign located approximately three hundred feet from the stop sign. Finally, the vehicle would pull up to the stop sign at the intersection.

The first instance in which plaintiffs argue that defendant did not comply with the manual is in its failure to place the "stop ahead" sign before the "route junction" sign. Section 2P of the manual states:

"When both a guide sign and a warning sign are necessary at approximately the same location, the warning sign shall precede the guide sign and shall be located so as not to obscure the guide sign." (Emphasis added.)

It is clear from the manual that defendant intended that the "stop ahead" warning sign be placed before the "route junction" guide sign since defendant chose the language "shall precede." The word "shall" establishes a mandatory duty, absent a clear and unequivocal intent that it receive a construction other than its ordinary meaning. Dorrian v. Scioto Conserv. Dist. (1971), 27 Ohio St.2d 102, 56 O.O.2d 58, 271 N.E.2d 834, paragraph one of the syllabus. Such an interpretation is consistent with the manual itself, which states in Section 1D(1) that "shall" represents a mandatory condition: "Where certain requirements in the design or application of the device are described with the 'shall' stipulation, it is mandatory when an installation is made that these requirements be met." See Lumbermens Mut. Cas. Co. v. Ohio Dept. of Transp. (1988), 49 Ohio App.3d 129, 551 N.E.2d 215. We agree with defendant that it may have been an exercise of "engineering judgment" to make the initial decision to install the "stop ahead" warning sign. However, once it elected to do so, defendant was under a duty to comply with the mandatory requirements imposed by its own manual, which it failed...