Pierce v. Ohio Dept. of Transp.

• Decision Date: 21 February 1985
• Docket Number: No. 84AP-644,84AP-644
• Citation: 491 N.E.2d 729,23 OBR 235,23 Ohio App.3d 124
• Parties: , 23 O.B.R. 235 PIERCE et al., Appellants, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: Ohio Court of Appeals

Page 124

23 Ohio App.3d 124

491 N.E.2d 729, 23 O.B.R. 235

PIERCE et al., Appellants, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellee.

No. 84AP-644.

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

Feb. 21, 1985.

Syllabus by the Court

Having decided to place a traffic control device on a state highway, the Department of Transportation has a duty to comply with the requirements of its own manual and specifications for a uniform system of traffic control devices adopted under R.C. 4511.09. Failure to mark no-passing zones in conformity with its traffic manual may render the Department of Transportation liable for damages suffered as a result of a motor vehicle accident occurring at an intersection. (R.C. 4511.10, construed.)

Michael F. Colley Co., L.P.A., and Dana A. Deshler, Jr., Columbus, for appellants.

Anthony J. Celebrezze, Jr., Atty Gen., and Donald J. Guittar, Columbus, for appellee.

BROGAN, Judge.

On June 13, 1981, Charles J. Pierce, while riding his motorcycle, was struck from behind by an automobile at a "T" intersection of State Route 571 and Daly Road in Darke County, Ohio. On January 4, 1983, Pierce filed suit in the Court of Claims against the Ohio Department of Transportation ("ODOT") alleging that ODOT had negligently maintained State Route 571 by failing to maintain no-passing lines at least three hundred feet in advance of the Daly Road intersection proximately resulting in serious injury to Pierce.

In a separate cause of action, Pierce's wife Linda sought damages for loss of services and consortium for ODOT's negligence.

After answering the complaint, ODOT moved for summary judgment in its favor contending that Pierce's injuries were caused by the sole negligence of the automobile driver, Ms. Dawn R. Timmons. After the trial court granted summary judgment for ODOT, appellants appealed that judgment asserting as their sole assignment of error that the court erred in granting summary judgment because ODOT was liable for the negligent highway markings, and such negligence was the proximate cause of Pierce's injuries.

Submitted in support and in opposition to the motion for summary judgment were certain admissions made by the parties, answers to interrogatories, the deposition of the appellant, and certain affidavits.

The deposition of appellant Charles Pierce established that, at approximately 9:45 p.m. on June 13, 1981, he and five other motorcyclists were traveling west on State Route 571 when they slowed their bikes to make a turn south onto Daly Road which intersects in a "T" intersection with State Route 571.

Pierce stated the five cyclists were traveling two abreast, with himself inside of the first two cycles. He stated he came to a complete stop at Daly Road to permit two cars traveling east to pass by. He stated he signaled to turn with his left hand, and as he turned he was struck broadside by a car behind him also traveling westerly. He stated he did not look into his rearview mirror before turning.

The evidence established that State Route 571 was a relatively level two-lane road and ODOT was responsible for maintenance of the state route. The posted speed for State Route 571 was fifty-five m.p.h.

Larry Roettger, Acting District Traffic Engineer for ODOT, submitted his affidavit. He stated he was a sixteen-year veteran of ODOT and was familiar with the intersection in question. He stated the intersection was located approximately one mile west of the corporation line of Greenville, Ohio. He stated there were residences on both sides of both roads, which area may be defined as residential by the Ohio Manual of Uniform Traffic Control Devices.

He further stated the traffic control on State Route 571 consists of a four-inch dashed yellow centerline and a four-inch solid yellow no-passing line on each approach east and west to the intersection of Daly Road. He also indicated the no-passing line for westbound traffic begins at three hundred eleven feet in advance of the physical centerline of the Daly Road intersection.

He stated the passing lines were painted on State Route 571 on October 5, 1979, and were in place at the time of the accident. He stated the passing lines were in conformity with ODOT's manual Section 3B-7 for a residential or rural area. He attached a copy of the manual.

Appellants submitted the affidavit of Patrick Harrison, attorney for appellants who stated, on February 26, 1982, he went to the accident site and observed that there was no sign on the side of State Route 571 indicating an intersection was being approached and that no passing was permitted. He stated he "walked off" the length of the yellow no-passing line as one approaches Daly Road on State Route 571 and it measured less than one hundred feet.

Pierce stated neither he nor any of his fellow cyclists heard the automobile driver behind them signal that she intended to pass them. He stated he did not see the car before it struck him. The driver of the automobile was Dawn Timmons. Pierce stated he understood that Timmons crossed the yellow line and struck him while he was located in the intersection. Pierce settled his claim with Timmons before filing suit against ODOT.

The trial court, in granting summary judgment for the appellee, noted there was a conflict in the evidence as to the actual length of the no-passing yellow line on State Route 571. The court noted that "[r]egardless of the length of the yellow line, Pierce admits Timmons crossed the yellow line." The court found that Timmons passed in a no-passing zone in violation of R.C. 4511.30(C), and this was the sole proximate cause of the collision.

The court further found that the fact that State Route 571 was negligently or incorrectly marked was not an excuse for a violation of R.C. 4511.30, citing Chambers v. McFerren (1959), 168 Ohio St. 398, 155 N.E.2d 917 .

R.C. 4511.30 provides in pertinent part:

"No vehicle or trackless trolley shall be driven upon the left side of the roadway under the following conditions:

" * * *

"(C) When approaching within one hundred feet of or traversing any intersection or railroad grade crossing." (Emphasis added.)

In Chambers v. McFerren, paragraph two of the syllabus, the Supreme Court held that the mere fact that a highway was marked by a broken white line separating its right lane from its left lane, and that there were no yellow lines or other markings within one hundred feet of an intersecting highway, do not constitute a legal excuse for a violation of R.C. 4511.30.

In Mann v. Lewis (1970), 22 Ohio St.2d 191, 259 N.E.2d 116 , the Supreme Court held that R.C. 4511.30(C) was intended, and will be construed as intending, to make it unlawful for a motor vehicle to be to the left of the center of the roadway when approaching within one hundred feet of, or traversing, an intersection. The court found the motorist negligent as a matter of law, and cited Chambers, supra, as authority for denying appellee's claim that the intersection was unmarked or unnoticeable as a defense.

The evidence clearly established that Timmons struck Pierce within one hundred feet of the Daly Road intersection, and she was negligent as a matter of law and her negligence proximately caused his injuries. Chambers establishes that unmarked passing zones do not provide defenses to those who pass within one hundred feet of intersections. Neither the state nor ODOT was made a party to the litigations in Mann and Chambers. The critical issue is whether ODOT's failure to properly mark no-passing zones may render it liable "concurrently" with the negligent motorist.

Appellants contend that ODOT's negligence in failing to properly mark State Route 571 with a no-passing line three hundred feet from Daly Road proximately caused Pierce's injuries.

R.C. 4511.09 states, "[t]he department of transportation shall adopt a manual and specifications for a uniform system of traffic control devices * * * for use upon highways within this state."

R.C. 4511.10 states in pertinent part:

"The 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."

R.C. 4511.11(A) provides that local authorities in their respective jurisdictions shall place and maintain traffic control devices in accordance with the Department of Transportation manual and specifications for a uniform system of traffic control devices, adopted under R.C. 4511.09, upon highways under their jurisdiction.

In Royce v. Smith (1981), 68 Ohio St.2d 106, 429 N.E.2d 134 , the Supreme Court held that a complaint and a crossclaim seeking to impose liability on township trustees for their alleged negligence in failing to maintain a stop sign located on a township road state claims upon which relief can be granted. Justice Sweeney, speaking for the majority, stated at 109, 429 N.E.2d 134:

"Township trustees are 'local authorities' for purposes of R.C. Chapter 4511. Appellants submit that the applicable standard of care to determine whether the trustees have fulfilled their obligations under R.C. 4511.11 or have been negligent with respect thereto is established by the Department of Transportation manual, which is incorporated into the statute by express reference. Several provisions in the manual are relevant to the instant cause. Section 2F provides in pertinent part: 'Special care should be taken to see that weeds * * * [and] shrubbery * * * are not allowed to obscure the face of any sign.' Section 2E-1 speaks of positioning signs for maximum visibility, while Section 2N-17 recommends the use of a 'Stop Ahead' sign if the visibility of a stop sign is restricted by, inter alia, 'foliage.' If, as appellants argue, R.C. 4511.11 imposes official duties, specifically the aforestated duties described in the manual, then the breach...