Strohofer v. City of Cincinnati

• Decision Date: 03 August 1983
• Docket Number: 82-1504,Nos. 82-674,s. 82-674
• Citation: 6 OBR 178,451 N.E.2d 787,6 Ohio St.3d 118
• Parties: , 6 O.B.R. 178 STROHOFER, Executrix, et al., Appellants, v. CITY OF CINCINNATI, Appellee. MASCARI et al., Appellants, v. CHAN, Appellant, et al.; City of Columbus, Appellee.
• Court: Ohio Supreme Court

Page 118

6 Ohio St.3d 118

451 N.E.2d 787, 6 O.B.R. 178

STROHOFER, Executrix, et al., Appellants, v. CITY OF CINCINNATI, Appellee.

MASCARI et al., Appellants, v. CHAN, Appellant, et al.;

City of Columbus, Appellee.

Nos. 82-674, 82-1504.

Supreme Court of Ohio.

Aug. 3, 1983.

Syllabus by the Court

In the absence of a statute providing immunity, the defense of sovereign immunity is not available to a municipal corporation in an action for damages alleged to be caused by the tortious conduct of the municipality. (Haverlack v. Portage Homes, Inc., 2 Ohio St.3d 26, 442 N.E.2d 749, approved and followed.)

In case No. 82-674, Joseph G. Strohofer died as the result of injuries he received when his automobile collided with an automobile being driven by Charles Rampello at the intersection of Central Parkway and Race Street in Cincinnati, Ohio. The intersection was governed by four banks of traffic lights for southbound traffic and two banks of traffic lights for westbound traffic on Central Parkway. Apparently the lights were designed so that two of the four banks of lights on southbound Race Street were green at the same time that the lights governing westbound traffic on Central Parkway were green.

This action, maintained by appellant, Doris B. Strohofer, as surviving spouse and executrix of the Estate of Joseph G. Strohofer, named Rampello, his employer, Woody Sander Ford, Inc. and the city of Cincinnati as defendants. The complaint included a claim that the city of Cincinnati had acted negligently and created a nuisance by erecting and maintaining traffic control lights in a manner which confused motorists at the intersection where the collision occurred.

The trial court granted the city of Cincinnati's motion for summary judgment, dismissing the city as a party as to all claims on the basis of sovereign immunity. The court of appeals affirmed the judgment of the trial court and the cause is now before this court pursuant to the allowance of a motion to certify the record.

James W. Mascari, Jr., an appellant in case No. 82-1504, sustained injuries when he was thrown from his motorcycle as the result of an automobile collision which occurred at the intersection of Courtright and Groves Road in Columbus, Ohio. Appellant Marilyn A. Chan, and Randell L. Shank, were traveling toward one another through a green light on Groves Road while Mascari was at rest at the red light on Courtright Road. Shank turned left in front of Chan, their automobiles collided, and Shank's automobile collided with Mascari's motorcycle.

James and Julie Mascari brought this action for damages against Chan, Shank and the city of Columbus. The complaint alleged, inter alia, that the city of Columbus was negligent and had created a nuisance by placing a sign directed to Chan's lane of travel which read, "YIELD TO OPPOSING TRAFFIC," and which it was alleged, confused motorists and created a hazard.

At trial, after the opening statement on behalf of the Mascaris, the city of Columbus moved for a directed verdict on the basis of sovereign immunity. The trial court sustained the motion and dismissed all claims and cross-claims against the city of Columbus.

The court of appeals affirmed the judgment of the trial court, and finding its judgment to be in conflict with the judgment rendered by the Court of Appeals for Cuyahoga County in Senko v. Molitoris (October 15, 1981), No. 43381, unreported, certified the cause to this court for review and final determination.

We have consolidated these cases for final disposition because they raise the same issue.

Spraul & Reyering, Thomas C. Spraul and Patrick J. Cronin, Cincinnati, for appellants in No. 82-674.

Richard A. Castellini, City Sol., and Daniel J. Schlueter, Asst. City Sol., for appellee in No. 82-674, and urging affirmance for amicus curiae, city of Cincinnati, in No. 82-1504.

Charles R. Andrews Co., L.P.A., and Charles R. Andrews, Columbus, for appellants Mascaris, in No. 82-1504.

Knepper, White, Arter & Hadden, Louis E. Gerber and Sally Ann Walters, Columbus, for appellant Chan, in No. 82-1504.

Gregory S. Lashutka, City Atty., Patrick M. McGrath and Deborah S. Everson, Asst. City Attys., for appellee city of Columbus, in No. 82-1504.

Harry E. Klide, Director of Law, Canton, urging affirmance for amicus curiae, city of Canton, in No. 82-1504.

John D. Maddox, Director of Law, Cleveland, urging affirmance for amicus curiae, city of Cleveland, in No. 82-1504.

Sheldon M. Rosen, Director of Law, Toledo, urging affirmance for amicus curiae, city of Toledo, in No. 82-1504.

Thomas G. Petkewitz, Director of Law, Dayton, urging affirmance for amicus curiae, city of Dayton, in No. 82-1504.

Edward J. Riegler, Director of Law, Akron, urging affirmance for amicus curiae, city of Akron, in No. 82-1504.

Edward N. Sobnosky, Director of Law, Youngstown, urging affirmance for amicus curiae, city of Youngstown, in No. 82-1504.

Calfee, Halter & Griswold and John E. Gotherman, Cleveland, urging affirmance for amicus curiae, Ohio Municipal League, in No. 82-1504.

JAMES P. CELEBREZZE, Justice.

In each of these cases we are asked to determine whether appellant's claims against the respective municipalities for damages arising from the allegedly tortious design and placement of traffic control devices, are barred by the doctrine of sovereign immunity.

In view of our recent decision in Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.2d 26, 442 N.E.2d 749, we hold that they are not. Therein we abrogated the doctrine of sovereign immunity and held at paragraph two of the syllabus that "[t]he defense of sovereign immunity is not available, in the absence of a statute providing immunity, to a municipal corporation in an action for damages alleged to be caused by the negligent operation of a sewage treatment plant."

Relying on the syllabus, appellee city of Columbus and the amici argue that the holding in Haverlack is limited to liability for damages caused by the negligent operation of a sewage treatment plant.

It is clear from our decision, however, that we rejected the continued viability of the doctrine of sovereign immunity as a defense. We reached that result upon finding that attempts to apply the doctrine resulted in confusion and unpredictability in the law; that its application created unjust results; and that it was unnecessary because municipalities can protect themselves from liability in the same manner as private businesses. We concluded that, "[s]tare decisis alone is not a sufficient reason to retain the doctrine which serves no purpose and produces such harsh results. Therefore, we join with the other states in abrogating the doctrine." Id. at 30, 442 N.E.2d 749.

The facts presented in the cases herein do not dissuade us from that conclusion. To the contrary, they illustrate the absurd consequences which result from attempts to distinguish proprietary from governmental functions in determining whether a municipality is amenable to suit. The courts below both found that the design and placement of traffic control devices were governmental functions, the performance of which could not give rise to liability. At the same time they conceded that the appellants would have had actionable claims had they alleged a failure to repair or maintain the traffic control devices in question.

R.C. 723.01 imposes upon municipalities the duty to keep their streets " * * * open, in repair, and free from nuisance." It is difficult to conceive of a greater nuisance than improperly and dangerously directing traffic through a heavily travelled intersection. It is equally difficult to conceive of a justification for shielding a municipality from liability in an action alleging such conduct, solely because the conduct involved was the design and placement of traffic control devices rather than their repair and maintenance.

In the absence of a statute providing immunity, the defense of sovereign immunity is not available to a municipality in an action for damages alleged to be caused by the tortious conduct of the municipality.

Appellees cite no statute, nor does our research disclose one, which grants them immunity from liability for damages arising from the design and placement of traffic control devices.

Accordingly, the judgments of the courts of appeals are reversed and the causes are remanded to the trial courts for further proceedings.

Judgments reversed and causes remanded.

In case No. 82-674:

FRANK D. CELEBREZZE, C.J., and COOK, SWEENEY and CLIFFORD F. BROWN, JJ., concur.

LOCHER and HOLMES, JJ., dissent.

COOK, J., of the Eleventh Appellate District, sitting for WILLIAM B. BROWN, J.

In case No. 82-1504:

FRANK D. CELEBREZZE, C.J., and SWEENEY and CLIFFORD F. BROWN, JJ., concur. WHITESIDE, J., concurs separately.

LOCHER and HOLMES, JJ., dissent.

WHITESIDE, J., of the Tenth Appellate District, sitting for WILLIAM B. BROWN, J.

WHITESIDE, Justice, concurring.

Irrespective of whether I previously might have found otherwise, stare decisis compels the result this court reaches today since only last December this court held to the same effect in Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 442 N.E.2d 749 which was recently followed and extended in Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St.3d 31, 451 N.E.2d 228.

Unfortunately, this court addresses only the question of availability of sovereign immunity with respect to tortious conduct of a municipal corporation, rather than the basic underlying issue of sovereign immunity.

Sovereign immunity for municipal corporations has been a matter of confusion and inconsistency for more than a century. In 1840, it was held that a municipal corporation is no different from an individual with respect to liability for injury. Rhodes v. Cleveland (1840), 10 Ohio 159. See, also, McCombs v. Akron (1846), 15 Ohio 474. In 1854, however, the governmental-proprietary distinction was suggested in Dayton v. Pease (1854), 4...